(navigation image)
Home American Libraries | Canadian Libraries | Universal Library | Community Texts | Project Gutenberg | Biodiversity Heritage Library | Children's Library | Additional Collections
Search: Advanced Search
Anonymous User (login or join us)
Upload
See other formats

Full text of "Code of laws of South Carolina 1952, Annotated"

The 
University of South Carolina 




Coleman Karesh 
Law Library 



use 

OCT 2 2 2C04 
LAW LIBRARY 



Digitized by the Internet Archive 

in 2011 with funding from 

LYRASIS Members and Sloan Foundation 



http://www.archive.org/details/codeoflawsof196015sout 



CODE OF LAWS 

OF 

SOUTH CAROLINA 
1952 




1960 Cumulative Supplement 



ANNOTATED 



Prepared under the supervision and direction of the 
Code Commissioner and the Committee on Statutory 
Laws of the General Assembly of South Carolina 

COMMITTEE ON STATUTORY LAWS 
Senators Representatives 

James B. Morrison, Chairman John D. Lee, Jr. 

John A. Martin Robert E. McNair 

P. Bradley Morrah, Jr. John C. Pracht, Jr. 

CODE COMMISSIONER 
Lewie Griffith Merritt 



IN EIGHT VOLUMES 

Volume 1 



TITLES 1 TO 12 



Place in Pocket of Volume 1 of Main Set 

FURMAN R. GRESSETTE 
St. Matthews, S. C. 

THE R. L. BRYAN COMPANY 

Columbia, S. C. 

1960 



/; 



Copyright 1960 

BY 

The State of South Carolina 



NOTICE 

This pocket supplement is not official. At the direction 
of the Committee on Statutory Laws the Acts as enacted 
have been edited in various particulars to conform them 
to the style and arrangement of the Code of 1952 and to 
make them more readily usable by the practitioner for 
ordinary work. For further details see the Foreword in 
the Pocket Supplement to Volume 1. 



FOREWORD 

This Supplement is published pursuant to an agreement with the Committee 
on Statutory Laws (Hon. James B. Morrison, Chairman, Hon. John A. Martin, 
Hon. P. Bradley Morrah, Jr., Hon. Robert E. McNair, Hon. John D. Lee, Jr. and 
Hon. John C. Pracht, Jr.), and the Code Commissioner (Hon. Lewie Griffith 
Merritt). 

The 1959 Supplement was used as a basis for the treatment of the 1960 pro- 
visions. The work was done under the direction and supervision of the Committee 
on Statutory on Laws and the Code Commissioner. 

Statutes 

This Supplement contains the general and permanent laws enacted during the 
1952, 1953, 1954, 1955, 1956, 1957, 1958, 1959 and 1960 regular sessions and the 
1956 extra session of the General Assembly. For local Acts or Acts of a temporary 
nature, reference should be made to the Acts and Joint Resolutions of 1952, 1953, 
1954, 1955, 1956, 1957, 1958, 1959 and 1960. 

Treatment of Statutes 

Amendments to existing laws or sections of the Code of Laws of 1952 are 
generally inserted under the same section numbers as appear in the Code. New 
Acts are codified under the appropriate titles and chapters. 

Where a Code section consists of several parts and an amending Act which 
changes only one part or adds a new part, the remainder of the section being 
unaffected, the amended or new part only has been in instances set out in the Supple- 
ment. Certain Acts which might be deemed sufficiently general to be included in a 
revision of the Code but nevertheless affect only one locality or area have been in- 
corporated by reference only. 

As indicated in the Notice placed in each pocket part, the Acts as enacted have at 
the direction of the Committee on Statutory Laws been edited in various particulars 
to conform them to the style and arrangement of the Code of 1952 and to make 
them more readily usable by the practitioner for ordinary work. For example, sec- 
tions of the Acts have been in certain instances divided into smaller sections in 
the Supplement ; when the sequence of sections in an Act did not appear to be 
completely logical or to conform to similar sequences used in the Code, the order 
of the sections has been rearranged to follow what appeared to be the more logical 
order ; punctuation, capitalization, the use of italics, etc., generally changed to con- 
form to the usage of the Code; errors of grammar and punctuation when noted 
and when no ambiguity of meaning involved have been corrected ; portions of the 
text have been simplified ; redundant words have been omitted ; etcaetera. Where 
errors in grammar, misplaced punctuation, etc., raised an ambiguity as to the 
intent, the errors have not been corrected but the Act has been printed in such 
respects precisely as enacted. Nevertheless, because this editing has taken place, in 
the interest of the general utility of the work, it is suggested that in all matters of 
great importance or doubtful meaning the original Act as printed in the Acts and 
Joint Resolutions of 1952, 1953, 1954, 1955, 1956, 1957, 1958, 1959 and 1960 be 
consulted. 

Historical References 

The full historical citation generally is given following each new or amended 
section except in the instances mentioned in the second paragraph above. 



Annotations 

The annotations have been brought to date with constructions from South 
Carolina cases appearing in the South Carolina Reports through Volume 236, 
page 245, the Southeastern Reporter, Second Series, through Volume 116, page 104. 
and Smith Advance Sheets through opinions filed during the week ending Sep- 
tember 17, 1960, (opinions in all cases under consideration by the court having 
been filed). Constructions have also been taken from Federal cases which arose in 
South Carolina through Federal Supplement Volume 185, page 216, Federal Re- 
porter, Second Series, Volume 280, page 872, and Supreme Court Reporter Volume 
80. Annotations have also been prepared from certain opinions of the Attorney 
General. 

The annotations are not selective. Every case in which there is construction or 
application of any part of the Code is noted in its appropriate place, whether the 
Code is cited or not. Applicability of this paragraph does not include the annota- 
tions for the 1953 Supplement, as we did not publish that supplement. 

Index 

The general index in the Code of 1952 should first be consulted to ascertain if 
the subject desired is therein, and if the subject is located, then the particular code 
section number should be consulted in the Supplement to see if it has been affected. 
The supplement index generally contains references only to new sections and to 
amended sections when, because of the amendment, the original section has been 
substantially changed. Italicized portions of the supplement index indicate ref- 
erences to the Code of 1952. 

Rules and Regulations 

Rules and Regulations have been brought up to those filed in the Secretary 
of State's office July 5, 1960. but certain nursing rules filed July 24, 1960, are 
included. 

Tables 

A table showing where the Acts codified in the Supplement have been treated and 
a table of all Code and 1960 Supplement sections amended or repealed appear in 
the supplement to Volume 8, which also contains the general index. 

Editorial Work and Printing 

We are grateful to S. Henry Edmunds, (mainly annotations), W. R. Symmes, 
Lawrence M. Gressette, Jr., Mrs. Virginia I. Ott, Mrs. Helen G. Felder and 
Mrs. Frances B. Welch for their assistance in the editorial work, which was in 
charge of Furman R. Gressette. The printing, binding and distribution by The 
R. L. Bryan Company. 

Furman R. Gressette 
The R. L. Bryan Company 



Code of Laws of South Carolina 

1952 



I960 CUMULATIVE SUPPLEMENT 



Title 1. 
Administration of the Government. 

Chap. 1. General Provisions, §§ 1-1 to 1-82. 

2. Governor and Lieutenant Governor, §§ 1-102 to 1-128.6. 

3. Secretary of State, § 1-201. 

4. Attorney General and Solicitors, §§ 1-231 to 1-260.1. 

5. Code Commissioner and Committee on Statutory Laws, §§ 1-301 to 

1-316. 

6. State Budget and Control Board, § 1-353.1. 

6.1. Mines and Minerals, §§ 1-361.1 to 1-363. 

6.2. Atomic and Nuclear Energy, §§ 1-386 to 1-395. 

7. Grounds and Buildings, §§ 1-412 to 1-463. 

8. Printing and State Publications Generally, § 1-522. 

9. Census.^ §§ 1-600 to 1-601. 

12. State Finances, §§ 1-741 to 1^849. 

CHAPTER 1. 
General Provisions. 



Article 1. 
Executive Department. 
Sec. 

1-1. What officers constitute executive de- 
partment. 
1-3. [Repealed.] 

Article 2. 

Official Rules and Regulations. 

1-11. Not effective until properly certified 

and filed; time effective. 
1-12 to 1-15. [Repealed.] 

Article 3. 
Purchases and Employment. 
1-23. Hearing on such preference. 
1-26. Definition for §§ 1-25 and 1-28. 
1-31. [Repealed.] 
1-36 to 1-39. [Repealed.] 
1-39.1. Written applications required for 
employment; elective positions 
excepted; forms. 
Article 4. 
Provisions Affecting Only State 
Officers, Boards, etc. 
M0. Office hours of certain departments. 
1-40.1. Merit systems. 

1-41. Oath and bonds of certain depart- 
mental employees. 
1-42.1. Vacations; payment of accrued 

leaves of deceased employees. 
U44. Periods covered by annual reports. 
1-45.1. Same; court matters to include. 



Sec. 

1-49. Deductions for group life and hospital 

insurance. 
1-49.1. Deductions for Federal taxes. 
Article 5. 
Provisions Affecting Local or Local and 
State Officers, etc. 
1-54. Contracts in excess of tax or appro- 
priation; diverting public funds. 
1-63.1. Investment of pension and trust 
funds in obligations of Interna- 
tional Bank for Reconstruction 
and Development. 
1-63.2. Eligibility of such obligations as 
deposits of collateral and security 
for deposits. 
1-63.3. Definitions for §§ 1-63.1 and 1-63.2. 
1-64. Public employee taking statement in 
an investigation must give copy 
to person making same. 
1-65. Certified mail and certain other forms 
of mail equivalent to registered 
mail. 

Article 7. 
Code of 1952. 
1-81. Adoption of Code. 

Article 8. 
Official Documents. 
1-82. Eastern (Greek) Orthodox Church to 
be designated as a major religious 
faith. 



§ 1-1 Code of Laws of South Carolina § 1-23 

Article 1. 
Executive Department. 
§ 1-1. What officers constitute executive department. 

The executive department of this State is hereby declared to consist of the 
following officers, that is to say: The Governor and Lieutenant Governor, the 
Secretary of State, the State Treasurer, the Attorney General and the solicitors, 
the Adjutant General, the Comptroller General, the State Superintendent of Edu- 
cation, the Commissioner of Agriculture and the Chief Insurance Commissioner. 

1942 Code § 3082; 1932 Code § 3082; Civ. C. '22 § 766; Civ. C. '12 § 682; Civ. C. '02 
§ 613; G. S. 464; R. S. 530; 1865 (13) 350; 1941 (42) 119; 1960 (51) 1646. 

Effect of amendment. — The 1960 amend- 
ment substituted Chief Insurance Commis- 
sioner for Insurance Commissioner. 

§ 1-3. Books, stationery and postage. 

Repealed by A. & J. R. 1960 (51) 1747. 

Cross reference. — As to purchase of cer- 
tain products manufactured by State Peni- 
tentiary, see §§ 55-283 and 55-284. 

Article 2. 
Official Rules and Regulations. 
§ 1-11. Not effective until properly certified and filed; time effective. 

Rules and regulations adopted under authority of a general and permanent law 
of the State shall become effective only after they have been properly certified and 
filed in the office of the Secretary of State. Rules and regulations submitted for 
filing must show the general and permanent laws under which they are issued 
and the Secretary of State shall not accept rules and regulations for filing here- 
under if the authority for issuance of them is not stated immediately preceding such 
rules and regulations offered for filing. On receipt of such rules and regulations, he 
shall note on them the date they were so filed in his office, permit the public to 
inspect them and index in a suitable book those accepted for filing so as to show 
the issuing officer or agency, the authority for the issuance, the date of each is- 
suance filed in his office and the numbers thereof. The officer or agency adopting 
them shall, at the time a certified copy thereof is filed in the office of the Secretary 
of State, send two copies of such certified copy to the Code Commissioner. Such 
rules and regulations when filed shall be effective until they are amended or 
repealed by the officer or agency filing them or by acts of the General Assembly. 

1942 Code § 2118-3; 1937 (40) 174; 1950 (46) 2278; 1960 (51) 1740. 

Effect of amendment. — The 1960 amend- 
ment added all after the first two sentences. 

§§ 1-12 to 1-15. Duty of Secretary of State ; how long such rules effective. 

Repealed by A. & J. R. 1960 (51) 1740. 
Cross reference. — See now § 1-11. 

Article 3. 
Purchases and Employment. 
§ 1-23. Hearing on such preference. 

Any such purchasing or contracting authority shall permit any interested party, 
resident or nonresident, to appear and to be heard, upon written application, in 



§ 1-25 1960 Cumulative Supplement § 1-40 

advocacy of any preference consistent with §§ 1-21 and 1-22 or in protest against 
any such preference that may have been accorded. 

1942 Code § 3079-7; 1935 (39) 423; 1960 (51) 1746. 

Effect of amendment. — The 1960 amend- 
ment eliminated the keeping of record of 
applications and appearance. 

§ 1-25. Preference to residents and persons in business in certain places. 

Cross references. — See § 1-26 for certain As to purchase of prison products, see 

definitions applicable to § 1-25. §§ 55-280 et seq. 

§ 1-26. Definitions for §§ 1-25 and 1-28. 

A resident person as mentioned in § 1-25 shall be construed to mean a person 
who has been regularly engaged in business and has had a place of business within 
this State for a period of one year. 

The term State institution as used in § 1-25 shall be construed to mean all 
educational institutions and all penal and charitable institutions which are supported 
either wholly or in part by the State. 

The term public institutions as used in § 1-28 shall mean all officers, departments 
and institutions of the several counties and municipalities. 

1942 Code § 3079-1; 1935 (39) 302; 1960 (51) 1738. 

Effect of amendment. — The 1960 amend- 
ment added the last paragraph. 

§ 1-28. Certain supplies produced by blind persons, etc. 

Cross reference. — See § 1-26 for defi- 
nition of "public institutions" as used in 
§ 1-28. 

§ 1-31. Definition. 
Repealed by A. & J. R. 1960 (51) 1738. 

Cross reference. — See § 1-26 for defi- 
nition of "public institutions" as used in 
§ 1-28. 

§§ 1-36 to 1-39. Employment of member of National Association for the Ad- 
vancement of Colored People prohibited; penalty for vio- 
lation of §§ 1-36 and 1-37. 

Repealed by A. & J. R. 1957 (50) 234. 

Cross reference. — See now 5 1-39.1. 

§ 1-39.1. Written applications required for employment; elective positions 
excepted; forms. 

State, county and municipal officers, departments, boards and commissions, and 
all school districts in this State, shall require applications in writing for employment 
by them, upon such application forms as they may severally prescribe, which shall 
include information as to active or honorary membership in or affiliation with all 
membership associations and organizations. But the provisions of this section shall 
not apply to any office or position which by law is filled by the vote of the qualified 
electors in any general or special election. 

1957 (50) 234. 

AkticlB 4. 
Provisions Affecting Only State Officers, Boards, etc. 
§ 1-40. Office hours of certain departments. 

The departments of the State Government, except when seven-day per week serv- 
ices are maintained, shall remain open from nine a. m. until five p. m. from Monday 

3 



§ 1-40.1 Code of Laws of South Carolina § 1-42.1 

through Friday, both inclusive, except on holidays fixed by law. On Saturdays 
such departments may close at one p. m. Skeleton forces may be maintained on 
Saturday and so staggered that each employee shall work not less than one Sat- 
urday out of each month. 
19S8 (SO) 1721. 

§ 1-40.1. Merit systems. 

Any department or agency of the State Government having a merit system April 
4 1958 may continue to operate under the terms of such system, subject to the 
availability of funds. 

1958 (SO) 1721. 

§ 1-41. Oath and bonds of certain departmental employees. 

All persons who hold or are appointed to any of the positions in the departments 
of the State government referred to in this section, or who shall be appointed by 
any of such departments as accountants to investigate and report the condition of 
any State or county officer, shall take oath of office in the usual form and the con- 
stitutional oath and give good and sufficient bond in the form of official bonds as 
prescribed by § 50-55. Such bonds shall be approved and filed as the bonds of other 
State officers. In the instance of such individual bonds, the penal sums thereof shall 
be for : 

( 1 ) Each clerk in the office of the Secretary of State $ 4,000.00 ; 

(2) Each clerk in the office of the Comptroller General 5,000.00; 

(3) Each clerk in the office of the State Treasurer 10,000.00; 

(4) Each clerk in the office of the State Superintendent of Education 2,500.00 ; 

(5) Each stenographer or typist in the office of the State Treasurer 2,500.00; 

(6) Each assistant Attorney General 2,500.00 ; and 

(7) Each accountant appointed by any of such departments 5,000.00; 

In lieu of such individual bonds, the head of any such department may, with 
the approval of the State Budget and Control Board, procure bonds in form to 
be approved by the Attorney General covering all persons employed in or by such 
department, including, if practical, such accountants. In such event the penal sum 
of such bonds shall be in such amount as the Board shall approve. 

Any such individual or blanket bonds shall be executed by a fidelity or surety 
company licensed to do business in this State. In all cases, the premium or annual 
payment required to keep such bonds in force and effect shall be paid by the State 
Treasurer on the warrant of the Comptroller General. 

1942 Code § 3060; 1932 Code § 3060; Civ. C. '22 § 751; Civ. C. '12 § 669; 1906 (25) 
25; 1959 (51) 136. 

Effect of amendment. — The 1959 amend- provision for blanket bonds and authorized 
ment required the bond to be as prescribed fidelity company to act as surety, 
by § 50-55 instead of by "statute," added 

§ 1-42.1. Vacations ; payment of accrued leaves of deceased employees. 

All employees of the various departments shall be entitled to an annual vacation 
not exceeding two weeks with pay. When a State employee dies in service com- 
pensation shall be paid to the family of such employee for any accrued vacation 
leave at the time of his death. 

1958 (50) 1721. iv pfi Ig 

Definition of "family". — Compensation and duty to support, surviving parents liv- 
payable under this section should be paid ing in same household and supported by 
to surviving husband or wife and any chil- employee probably also come within defi- 
dren who live in same household, and nition, but they have no legal claim to 
since "family" includes individuals whom proceeds.. Atty. Gen. Op. May .19, 1958. 
it was right of head of' family to control 

4 



§ 1-44 1960 Cumulative Supplement § 1-54 

§ 1-44. Periods covered by annual reports. 

Any department or institution of the State government which is by law required 
to submit an annual report to the Governor or the General Assembly shall submit 
such report covering a period from July first to June thirtieth, unless otherwise 
directed by the specific statute governing it. 

1942 Code § 2096; 1932 Code § 2096; 1929 (36) 225; 1931 (37) 278; 1933 (38) 490; 1960 
(51) 1746. 

Effect of amendment. — The 1960 amend- 
ment added the alternate direction. 

§ 1-45.1. Same; court matters to include. 

The head of every department required by law to make an annual report to the 
General Assembly or the Governor shall, after consultation with the Attorney 
General, include in such annual report a statement reflecting all cases decided in any 
of the courts of this State involving the constitutionality or construction of statutes 
of this State relating to such department with particular reference to any court 
decision affecting the administration of the laws of this State. 

1960 (51) 1779 [1901]. 

§ 1-49. Deductions for group life and hospital insurance. 

The Comptroller General shall, upon request of employees of the State, make 
deductions from their compensation for the payment of premiums for group life 
and hospital insurance ; but he shall not be required to make such deductions when 
such groups shall consist of less than one thousand State employees. He shall pay 
over to the insurance company, or its agents designated to receive such funds, all 
amounts so collected or withheld. But no part of the cost of such insurance or 
expenses incidental to such payroll deductions shall be borne by the State, nor shall 
any liability whatsoever be incurred by the State in connection therewith. 

1947 (45) 311; 1959 (51) 144 [280]. 

Effect of amendment. — The 1959 amend- 
ment required 1,000 employees instead of an 
employee to compel deductions to be made. 

§ 1-49.1. Deductions for Federal taxes. 

The Comptroller General or any State department or agency of the State Govern- 
ment designated as a withholding agent by him shall make deductions for taxes 
required to be deducted or withheld by the Federal Government from the com- 
pensation of State employees and pay over to the Director of Internal Revenue, or 
any agency designated to receive such funds, all collections so deducted or with- 
held. 

1954 (48) 1566. 

Article 5. 

Provisions Affecting Local or Local and State Officers, etc. 

§ 1-54. Contracts in excess of tax or appropriation; diverting public funds. 

It shall be unlawful for any public officer, State or county, authorized to so con- 
tract, to enter into a contract for any purpose whatsoever in a sum in excess of the 
tax levied or the amount appropriated for the accomplishment of such purpose or 
to divert or appropriate the funds arising from any tax levied and collected for any 
one fiscal year to the payment of any indebtedness contracted or incurred for any 
previous year. On violating the provision of this section any such officer shall 
be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine 
not exceeding five thousand dollars and not legs than five hundred dollars and by 

5 



§ 1-63.1 Code of Laws of South Carolina § 1-64 

imprisonment at hard labor in the State penitentiary for a period not exceeding five 
years nor less than one year, either or both, in the discretion of the court. 

1942 Code §§ 1508, 3073, 3074; 1932 Code § 1508; Cr. C. '22 § 457; Cr. C. '12 § 532; 
Cr. C. '02 § 377; G. S. 458, 459, 460; R. S. 299; 1874 (15) 692; 1906 (25) 206; 1960 (51) 1602. 

Effect of amendment. — The 1960 amend- Applied in McKown v. Daniel, 217 S. 

ment changed violation to misdemeanor C. 510, 61 S. E. 2d 163 (1950); Beacham 
from felony. v. Greenville County, 218 S. C. 181, 62 S. 

E. 2d 92 (1950). 

§ 1-63.1. Investment of pension and trust funds in obligations of Interna- 
tional Bank for Reconstruction and Development. 

Notwithstanding any other provision of law, public agencies and persons occupy- 
ing fiduciary capacities may invest pension funds and trust funds in obligations 
issued or unconditionally guaranteed by the international bank. 

1955 (49) 195. 

Editor's note.— See § 1-63.3 for defini- 
tions applicable to this section and § 1-63.2. 

§ 1-63.2. Eligibility of such obligations as deposits of collateral and security 
for deposits. 

Such obligations issued or unconditionally guaranteed by the international bank 
shall be eligible as deposits of collateral, as security for the deposit of public or 
other funds and for all other types of deposits to be made with any public agency. 

1955 (49) 195. 

§ 1-63.3. Definitions for §§ 1-63.1 and 1-63.2. 

The following terms as used in §§ 1-63.1 and 1-63.2 shall have the meanings 
set forth below, viz. : 

(1) The term "person" shall mean any individual, firm, partnership, corpora- 
tion, association or institution, including banks chartered under state or national 
laws. 

(2) The term "public bodies" shall mean the State of South Carolina, any 
county of the State, any incorporated city or town in the State and any division 
or political subdivision of the State. 

(3) The term "public agency" shall mean any authority, board, commission, 
governing body, any department of any of the foregoing and any public officer 
acting in an official capacity and performing functions committed by law for any 
public body. 

(4) The term "international bank" shall mean the International Bank for Re- 
construction and Development, which is an international institution, the members of 
which are governments of certain nations of the world including the government 
of the United States, and which was established and is operating under articles of 
agreement signed by those governments. 

(5) The term "trust ftinds" shall mean funds held by a person for the benefit of 
others and which may or must be invested in income producing investments. 

(6) The term "pension junds" shall mean pension funds established by public 
bodies or private groups of persons and which are administered by persons or 
public agencies. 

1955 (49) 195. 

§ 1-64. Public employee taking statement in an investigation must give copy 
to person making same. 
Whenever any person employed by the State or any county, city or municipality 
thereof, or any part of any such governing body, shall take a written statement in 
any investigation of any kind or nature from any person, the person receiving or 
taking the written statement shall give to the person making the statement a copy 

e 



§ 1-65 



1960 Cumulative Supplement 



§ 1-81 



thereof and shall obtain from the person making the statement a signed receipt for 
the copy so delivered. 

1952 (47) 1977. 

Cross reference. — As to use of such 
statement as evidence, see §§ 26-7.1 and 
26-7.2. 

The duty imposed on investigating offi- 
cers by this section is with respect to 
statements which they "shall taie," neces- 
sarily meaning after the passage of this 
section. State v. Anderson, 224 S. C. 419, 79 

§ 1-65. 



S. E. 2d 455 (1954). 

Quoted in State v. Jones, 228 S. C. 484, 
91 S. E. 2d 1 (1956); State v. Bullock, 235 
S. C. 356, 111 S. E. 2d 657 (1959). 

Applied in State v. Trull, 232 S. C. 250, 
101 S. E. 2d 648 (1958). 

Cited in State v. Britt, 235 S. C. 
Ill S. E. 2d 669 (1959). 



395, 



Certified mail and certain other forms of mail equivalent to registered 
mail. 

Whenever in the statute law of this State requirements are made that notices be 
sent by registered mail, the use of certified mail or such other form of United 
States mail as may be instituted by the United States Post Office providing for 
proof of mailing or delivery of such mail shall be considered as compliance with 
such statutory requirements. 

1957 (501 60. 

Article 7. 

Code of 1952. 
§ 1-81. Adoption of Code. 

The Report of the Code Commissioner made to the General Assembly for the 
year 1951 pursuant to Section 5, Article VI, of the Constitution of South Carolina, 
1895, with the addition of the general and permanent provisions enacted during 
1951 and other additions and amendments, eliminations, corrections, general make- 
up and arrangement made thereto is hereby adopted as the Code of Laws of South 
Carolina, 1952 and said Code is hereby declared to be the only general statutory 
law of the State on the 8th day of January, 1952. 

1953 (48) 2. 

Cross reference. — See notes under § 1- 
314. 

A general statute omitted from the 
code is lost, albeit through error or inad- 
vertence. State v. Conally, 221 S. C. 507, 
88 S. E. 2d 591 (1955); Seagle v. Mont- 
gomery, 227 S. C. 436; 88 S. E. 2d 357 
(1955). 

Effect of codification. — In the codifica- 
tion of a statute, mere rearrangement of 
its sections, or combination of several of 
its sections into one code section, or the 
breaking up of one of its sections into 
several code sections, with no substantial 
change in phraseology, does not change the 
meaning, purpose, operation or effect there- 
of, and it is considered as a continuance 
of the old law with same meaning and 
effect and is not a new and original enact- 
ment, unless an intention to alter the law 
clearly appears. State v. Conally, 227 S. C. 
507. 88 S. E. 2d 591 (1955). 

Insubstantial changes in language of 
statute, incident to its codification, are not 
to be taken as changing meaning of original 
enactment. Raggio v. Woodmen of the 
World Life Insurance Soc, 228 S. C. 340, 
90 S. E. 2d 212 (1955). 



In codification, changes in phraseology 
or omission or addition of words, do not 
necessarily require a change in construc- 
tion of the earlier act. State v. Conally, 
227 S. C. 507, 88 S. E. 2d 591 (1955). 

In case of doubt and uncertainty as to 
meaning of provision of code, resort in 
ascertaining its true meaning may properly 
be had to the act from which the provision 
was derived. State v. Conally, 227 S. C. 507, 
88 S. E. 2d 591 (1955). 

But where meaning of code provision 
is plain and unambiguous the court cannot 
recur to original statute for purpose of as- 
certaining its meaning. The ambiguity 
must be apparent in the revised version 
itself, and resort to original enactment must 
be for the purpose of solving, not creating 
it; and this is true even though the codifi- 
cation involved a substantial change in 
phraseology and meaning. State v. Conally. 
227 S. C. 507, 88 S. E. 2d 591 (1955). 

Where there is no ambiguity apparent 
in code provisions, court cannot resort to 
original enactments as a guide to construc- 
tion, and whether or not such result was 
contemplated by Legislature is beside the 
point. Lowndes Hill Realty Company v. 



§ 1-82 



Code of Laws of South Carolina 



§ 1-121 



Greenville Concrete Company, 229 S. C. 
619, 93 S. E. 2d 855 (1956). 

Applied in Wagenberg v. Charle»ton 
Wood Products, 122 F. Supp. 745 (1954); 



Colonial Life & A. Ins. Co. v. South 
Carolina Tax Com'n, 233 S. C. 129, 103 
S. E. 2d 908 (1958). 



Article 8. 
Official Documents. 

§ 1-82. Eastern (Greek) Orthodox Church to be designated as a major re- 
ligious faith. 
When the names of major religious faiths, Protestants, Catholics and Jews, are 
used in resolutions, acts or official papers of the State, or any political subdivision 
thereof, the name of the Eastern (Greek) Orthodox Church shall be included. 
1956 (49) 1658. 

CHAPTER 2. 
Governor and Lieutenant Governor. 



Article 1. 
General Provisions Concerning Governor. 
Sec. 
1-102. Salary of Governor. 

Ardcle 3. 

Appointment and Removal of Officers. 

1-121. Filling vacancies when Senate not in 

session. 
1-125. Appeal from such removal. 

Article 3.1. 
Protection of Persons and Property and 

Maintenance of Peace and Order. 
1-128. Governor may act to prevent vio- 
lence or threats thereof and to 
maintain peace and order. 



Sec. 

1-128.1. Issue proclamation when threats 
and danger create emergency; 
filing thereof; time effective. 

1-128.2. Powers may use when proclama- 
tion issued. 

1-128.3. Control of militia, peace officers, 
public facilities and public of- 
ficials for aforesaid purposes. 

1-128.4. May intervene and control violent 
or threatening situations. 

1-128.5. Powers granted under this article 
cumulative. 

1-128.6. Invalidity. 



Article 1. 
General Provisions Concerning Governor. 

§ 1-102. Salary of Governor. 

Effective with the term beginning in January 1963, the Governor shall receive an 
annual salary of twenty thousand dollars. 

1942 Code § 3090; 1932 Code § 3090; Civ. C. "22 § 775; Civ. C. '12 § 691; Civ. C 
'02 § 621; G. S. 473; R. S. 537; 1865 (13) 350; 1893 (21) 416; 1919 (31) 4; 1924 (33) 

1182; 1948 (45) 1716; 1954 (48) 1566; 1960 (51) 1779 [1890]. 

Effect of amendments. — The 1954 amend- The 1960 amendment increased salary to 

ment increased salary to fifteen thousand $20,000 from $15,000 effective in 1963. 
dollars from twelve thousand dollars. 



Article 3. 



Appointment and Removal oj Officers. 
§ 1-121. Filling vacancies when Senate not in session. 



(9) The members of the State Development Board. 

* * * 

1942 Code § 3093; 1932 Code § 3093; Civ. C. '22 § 778; Civ. C. '12 § 694; Civ. C 
'02 § 624; G. S. 476. 477; R. S. 540; 1868 (14) 66; 1870 (14) 376; 1871 (15) 690; 
1876 (16); 1877 (16) 249; 1878 (16) 571, 609, 766; 1882 (18) 1111; 1890 (20) 697; 
1896 (22) 154; 1901 (23) 701; 1920 (31) 704, 908; 1922 (32) 938; 1945 (44) 156; Const 
1895 Art. 12 § 2, Amend; 1954 (48) 1745. 

Effect of amendment. — The amendment in item (9). The section otherwise remains 
changed Board of Research, Planning and effective. 
Development to State Development Board 



§ 1-122 1960 Cumulative Supplement § 1-128.1 

§ 1-122. Officers Governor shall appoint. 

(3) Repealed by A. & J. R. 1960 (51) 1917. 

Cross reference. — See now §§ 55-261 et pursuant to the terms of the York County 

seq. Government Act created vacancies in the 

How vacancies in offices of county di- offices of county director and gave rise to 

rectors created. — The long-continued fail- the power of the Governor to appoint un- 

ure of a majority, including the Senator, der the general laws, §§ 14-302 and this 

of the York County legislative delegation section. Bradford v. Byrnes, 221 S. C. 255, 

to recommend persons for appointment as 70 S. E. 2d 228 (1952). 
members of the county board of directors 

§ 1-124. Removal of certain officers. 

Cross reference. — As to suspension of This section appears to have been in- 

officers indicted for crime, see §§ 50-9.1 and tended to implement Art. 3, Sec. 27, of the 
50-9.2. State Constitution. Atty. Gen. Op. Feb. 10, 

1956. 

§ 1-125. Appeal from such removal. 

Any such officer may appeal from any order of removal by the Governor under § 
1-124 to the resident or presiding judge of the circuit in which such officer resides. 
The judge shall hear and determine the appeal both as to law and fact upon the 
record as made before the Governor and upon such additional evidence as he shall 
see fit to allow. The notice of appeal shall be served upon the Governor, or his 
secretary, within five days after the service upon such officer of the order of the 
Governor removing him and shall state the grounds thereof and name the circuit 
judge to whom the appeal is taken. Thereupon the Governor shall forthwith transmit 
to such judge the record in the case including a copy of the order of removal, 
grounds of removal, evidence in support thereof and return of service and any 
other matter which in his judgment may be considered by the court. The circuit 
judge shall within twenty days after the taking of such appeal, or in such shorter 
time as may be practical, hear and determine the same, after giving to the parties 
reasonable notice of the time and place of hearing. Appeal from the judgment of the 
circuit judge to the Supreme Court may be had as in any other appeal at law. Such 
hearing may be had and judgment may be rendered in open court or at chambers 
within Or without the circuit. 

1942 Code § 3098; 1932 Code § 3098; 1924 (33) 997; 1960 (51) 1736. 

Effect of amendment. — The 1960 amend- eliminated provisions making judgment 
ment restricted appeal to orders under final, and provided for appeal from order of 
§ 1-124, eliminated conditions for presiding judgment, 
judge to hear appeal, designated the circuit, 

Article 3.1. 

Protection of Persons and Property and Maintenance of Peace and Order. 

§ 1-128. Governor may act to prevent violence or threats thereof and to 
maintain peace and order. 

The Governor may take such measures and do all and every act and thing which 
he may deem necessary in order to prevent violence or threats of violence to the 
person or property of citizens of the State and maintain peace, tranquility and good 
order in the State, and in any political subdivision thereof, and in any particular 
area of the State designated by him. 

1957 (50) 521. 

Cross reference. — As to Governor order- Editor's note. — The provisions of this 

ing militia out in event of riot, mob, insur- article are cumulative. See § 1-128.5. 
rection, etc., see § 44-114. 

§ 1-128.1. Issue proclamation when threats and danger create emergency; 
filing thereof; time effective. 
The Governor, when in his opinion the facts warrant, shall, by proclamation, 
declare that, because of unlawful assemblage, violence or threats of violence, a 



§ 1-128.2 Code of Laws of South Carolina § 1-128.6 

danger exists to the person or property of any citizen and that the peace and 
tranquility of the State, or any political subdivision thereof, or any particular area 
of the State designated by him, is threatened, and because thereof an emergency, 
with reference to such threats and danger, exists. The Governor, upon the issuance 
of such a proclamation, shall forthwith file it in the office of the Secretary of State, 
which shall be effective upon issuance and remain in full force and effect until re- 
voked by the Governor. 
1957 (50) 521. 

§ 1-128.2. Powers may use when proclamation issued. 

In all such cases when the Governor shall issue his proclamation as provided in 
§ 1-128.1 he may: 

(1) Further to cope with such threats and danger, order and direct any person 
to do any act which would in his opinion prevent or minimize danger to life, limb or 
property, or prevent a breach of the peace ; 

(2) Order any person to refrain from doing any act or thing which would, in his 
opinion, endanger life, limb or property, or cause, or tend to cause, a breach of the 
peace, or endanger the peace and good order of the State, any section or community 
thereof; and 

(3) By use of all appropriate available means enforce such order or proclamation. 
1957 (50) 521. 

§ 1-128.3. Control of militia, peace officers, public facilities and public officials 
for aforesaid purposes. 

For the purposes already stated the Governor may take and exercise any or all 
of the following actions : 

(1) Call out the military forces of the State (State Militia) or any unit or units 
thereof and order and direct them to take such action as in his judgment may be 
necessary to avert any threatened danger and to maintain peace and good order. 

(2) Order any and all law enforcement officers of the State or any of its sub- 
divisions to do whatever may be deemed necessary to maintain peace and good 
order. 

(3) Order the discontinuance of any transportation or other public facilities, or, 
in the alternative, to direct that such facilities be operated by a State agency. 

(4) Authorize, order or direct any State, county or city official to enforce the 
provisions of such proclamation in the courts of the State by injunction, mandamus 
or other appropriate legal action. 

1957 (50) 521. 

§ 1-128.4. May intervene and control violent or threatening situations. 

The Governor may intervene in any situation where there exists violence or 
threats of violence to persons or property and take complete control thereof to 
prevent violence, riotous conduct, public disorder or breaches of the peace. 

1957 (50) 521. 

| 1-128.5. Powers granted under this article cumulative. 

The powers granted under this article are supplemental to and in aid of powers 
vested in the Governor under the Constitution, statutory laws and police powers 
of the State on June 15 1957. 

1957 (SO) 521. 

§ 1-128.6. Invalidity. 

If any provisions of this article or the application thereof to any person or cir- 
cumstances is held invalid, the remainder of the article and the application of such 
provision to other persons or circumstances shall not be affected thereby. 

1957 (50) 521. 

10 



§ 1-131 1960 Cumulative Supplement § 1-240.1 

Article 4. 

Lieutenant Governor. 
§ 1-131. Compensation. 

Cross reference. — As to subsistence ex- session of the General Assembly, see 3 
penses for Lieutenant Governor during 30-52.1. 

CHAPTER 3. 

Secretary of State. 
Sec. 
1-201. Salary. 

§ 1-201. Salary. 

The Secretary of State shall receive an annual salary of eleven thousand dollars, 
and fees or perquisites of the office shall be paid into the Treasury of the State. 

1942 Code § 3101; 1932 Code § 3101; Civ. C. '22 § 783; Civ. C. '12 § 699; G. S. 

483, 484; R. S. 546, 547; 1786 (4) 751; 1865 (13) 350; 1924 (33) 1182; 1948 (45) 1716; 
1954 (48) 1566; 1957 (50) 404. 

Effect of amendments. — The 1954 amend- The 1957 amendment increased salary to 

ment increased salary to ten thousand eleven thousand dollars from ten thousand 

dollars from seven thousand five hundred dollars, 
dollars. 

CHAPTER 4. 

Attorney General and Solicitors. 

Article 1. Sec. 

Attorney General and Assistants. 1-251.2. When solicitor may order autopsy 
Sec. or post mortem examination. 

1-231. Salary. 1-255.1. Actions against the State. 

1-240.1. Defend certain public employees 1-258. Assistant solicitor for fifth judicial 

when prosecuted. circuit. 

1-240.2. Investigation required; when not 1-258.1. Same; additional. 

to defend. 1-259. Assistant to circuit solicitor, seventh 
1-240.3. Information obtained under §§ 1- judicial circuit. 

240.1 and 1-240.2 confidential and 1-260. Assistant to circuit solicitor, ninth 
not evidence. judicial circuit. 

Article 2. 1-260.1. Assistant to circuit solicitor, tenth 
Solicitors. judicial circuit. 

1-251.1. Further duties. 

Article 1. 
Attorney General and Assistants. 
§ 1-231. Salary. 

The Attorney General shall receive a salary at the rate of eleven thousand dollars 
per annum. 

1942 Code § 3112; 1932 Code § 3112; Civ. C. '22 § 795; Civ. C. '12 § 710; Civ. C. '02 
9 638; G. S. 495; R. S. 555; 1877 (16) 247; 1880 (17) 372; 1919 (31) 4; 1924 (33) 1182; 
1946 (44) 2596; 1948 (45) 1716; 1954 (49) 1566; 1957 (50) 404. 

Effect of amendments. — The 1954 amend- The 1957 amendment increased salary to 

ment increased salary to ten thousand eleven thousand dollars from ten thousand 
dollars from seven thousand five hundred dollars, 
dollars. 

§ 1-240. Protection of public charities and prosecution of corporations. 

Quoted in Watson v. Wall, 229 S. C. 
500, 93 S. E. 2d 918 (1956). 

§ 1-240.1. Defend certain public employees when prosecuted. 

In the event that any officer or employee of the State or any political subdivision 
thereof be prosecuted in any action, civil or criminal, or special proceeding in the 

J 1 Volume 1 



§ 1-240.2 Code of Laws of South Carolina § 1-255.1 

courts of this State, or of the United States, by reason of any act done or omitted 
in good faith in the course of his employment, the Attorney General shall, when 
requested in writing by any such officer or employee, appear and defend the action 
or proceeding in his behalf. Such appearance may be by any member of his staff 
or by any solicitor or assistant solicitor when directed to do so by the Attorney 
General. 

1960 (51) 1627. 

§ 1-240.2. Investigation required; when not to defend. 

Before any such defense, however, is undertaken, an investigation shall be made 
of the facts on which the action or special proceedings are based and unless, in the 
opinion of the Attorney General, it appears that the officer or employee was acting 
in good faith, without malice, and in the course of his employment, the investigation 
shall proceed no further, nor shall any defense be provided for him by virtue of § 
1-240.1. Such investigation may be made by the Attorney General, any member of 
his staff or by any solicitor or assistant solicitor when directed to do so by the 
Attorney General. If it should appear that any such officer or employee is covered 
by any policy of insurance, under the terms of which the carrier is required to 
provide counsel, the Attorney General may, in his discretion, make no further 
investigation and provide no representation for any such party. 

1960 (51) 1627. 

§ 1-240.3. Information obtained under §§ 1-240.1 and 1-240.2 confidential and 
not evidence. 

Any information obtained by virtue of §§ 1-240.1 and 1-240.2 shall be considered 
confidential and shall not be admissible as evidence in any such action or special 
proceeding, and no reference thereto shall be made in any such trial or hearing. 

1960 (51) 1627. 

Article 2. 
Solicitors. 
§ 1-251.1. Further duties. 

The several solicitors of the State shall attend all inquests and preliminary hear- 
ings in capital cases when requested by the coroner or the sheriff, and shall within 
their respective circuits in cooperation with, and as assigned by the Attorney Gen- 
eral, represent in all matters, both civil and criminal, all institutions, departments 
and agencies of the State. Likewise in criminal matters outside their circuits, and 
in extradition proceedings in other states, they shall be subject to the call of the 
Attorney General, who may exclusively in his discretion so assign them in case 
of the incapacity of the local solicitor or otherwise. The solicitors shall perform the 
services herein required, and in no instance, civil or criminal, shall they receive 
for such services any additional compensation, except that they shall be entitled 
to expense allowance, as provided for State employees and officers, when per- 
forming such services outside of their respective circuits. 

1954 (48) 1566. 

§ 1-251.2. When solicitor may order autopsy or post mortem examination. 
If any county coroner shall for any reason be unavailable the solicitor of the 
judicial circuit concerned may order an autopsy or post mortem examination to 
be conducted to ascertain the cause of death of any person. 

1955 (49) 189. 

§ 1-255.1. Actions against the State. 

The solicitors shall not engage in litigation against the State or any of its de- 
partments. 

1954 (48) 1566. 

12 



§ 1-258 1960 Cumulative Supplement § 1-260.1 

§ 1-258. Assistant solicitor for fifth judicial circuit. 

The circuit solicitor of the fifth judicial circuit may appoint a competent attorney, 
who is a resident of the circuit, as an assistant solicitor, who shall perform any and 
all of the duties and functions imposed by law upon the circuit solicitor as the 
solicitor of the circuit shall authorize, designate and direct. The assistant solicitor 
shall be appointed by the solicitor of the fifth judicial circuit to serve for the same 
term as the solicitor and shall receive as compensation for his services five thou- 
sand dollars per year. Four thousand and four hundred dollars of this amount shall 
be paid by Richland County and six hundred dollars shall be paid by Kershaw 
County. 

1953 (48) 139. 

§ 1-258.1. Same; additional. 

The circuit solicitor of the fifth judicial circuit may appoint a competent attor- 
ney, who is a resident of the circuit, as an additional assistant solicitor, who shall 
perform any and all of the duties and functions imposed by law upon the circuit 
solicitor as the solicitor of the circuit shall authorize, designate and direct. The 
assistant solicitor shall receive as compensation for his services such sum as is 
provided for in the annual appropriation act for Richland County. 

1958 (50) 1658. 

§ 1-259. Assistant to circuit solicitor, seventh judicial circuit. 

The circuit solicitor of the seventh judicial circuit may appoint a competent at- 
torney, who is a resident of Spartanburg County, as assistant solicitor. He shall 
perform any and all of the duties and functions imposed by law upon the circuit 
solicitor in Spartanburg County as the solicitor of the circuit shall authorize, desig- 
nate and direct. The assistant solicitor shall be appointed by the solicitor of the 
seventh judicial circuit and shall, after appointment, be commissioned by the gov- 
ernor. 

The solicitor of the seventh judicial circuit may remove the assistant solicitor 
from office at his pleasure and in no event shall the assistant solicitor be appointed 
for a period beyond the term of office of the circuit solicitor. The assistant solicitor 
shall receive from Spartanburg County as compensation for his services the sum 
of thirty-four hundred dollars per year, payable the first and fifteenth of each 
month, and eight hundred dollars per year for travel. 

The assistant solicitor shall appear and represent the State in magistrates' courts 
when requested by the sheriff's department or the highway patrol located in Spar- 
tanburg County. He shall further prosecute appeals from magistrates' courts in 
said county. 

1953 (48) 401. 

§ 1-260. Assistant to circuit solicitor, ninth judicial circuit. 

The circuit solicitor of the ninth judicial circuit may appoint a competent at- 
torney, who is a resident of the circuit, as an assistant who shall perform such of 
the duties and functions imposed by law upon the circuit solicitor as the solicitor of 
the circuit shall authorize, designate and direct. Such assistant shall enter upon his 
duties upon the approval of a majority of the legislative delegations within the 
circuit. He shall receive as compensation for his services such amount as shall be 
appropriated by the counties in the circuit, eighty per cent, of such amount to be 
paid by Charleston County and twenty per cent, to be paid by Berkeley County. 

1952 (47) 2076. 

§ 1-260.1. Assistant to circuit solicitor, tenth judicial circuit. 

The solicitor of the tenth judicial circuit may employ a lawyer residing in his 
circuit to assist in performing the duties of his office subject to confirmation by a 

13 



§ 1-301 Code of Laws of South Carolina § 1-307 

majority of the members of the Anderson and Oconee delegations. The term of 
office shall be at the pleasure of the solicitor, but such term shall not extend beyond 
the term of office of the employing solicitor. His salary shall be forty-eight hundred 
dollars annually, to be paid as follows: seventy per cent shall be paid by Anderson 
County and thirty per cent shall be paid by Oconee County and such sum shall be 
paid by the two counties in the same manner that county officers are paid by such 
counties. The assistant solicitor may receive from time to time such further com- 
pensation as the General Assembly may provide. 
19S7 (50) 325. 

CHAPTER 5. 
Code Commissioner and Committee on Statutory Laws. 

S«c Sec 

1-301. Election, term and salary of Code 1-307.1. Pocket supplements; revised vol- 

Commissioner. ume of Code. 

1-302. Vacancy. 1-308. Contracts for pocket supplements or 

1-305. Code Commissioner secretary of revision of volumes. 

Committee and Director of Leg- 1-315. Publication of advance sheets of 

islative Council; assistants. statutes; page proofs. 

1-307. Preparation of annual cumulative 1-316. Same; signatures and distribution 

pocket supplements. thereof. 

§ 1-301. Election, term and salary of Code Commissioner. 

A Code Commissioner shall be elected by a majority vote of the Legislative Coun- 
cU, and shall hold office for a term of four years and until his successor shall have 
been elected and qualified. He shall receive such salary as may be provided by the 
General Assembly, not to exceed eight thousand dollars per year. 

1942 Code § 2111; 1932 Code § 2111; Civ. C. '22 § 75; Civ. C. '12 § 65; Civ. C. '02 
62; 1901 (23) 697; 1918 (30) 798; 1934 (38) 1329; 1940 (41) 1940; 1954 (48) 1761. 

Effect of amendment. — 1954 amendment sembly, reduced the term from ten yean 
changed election from the General As- and added last sentence. 

§ 1-302. Vacancy. 

In case of vacancy from any cause, the Legislative Council shall, as soon as 
practicable, elect a successor for the unexpired term. 

1942 Code § 2111; 1932 Code § 2111; Civ. C. '22 § 75; Civ. C. '12 § 65; Civ. C. "02 
S 62; 1901 (23) 697; 1918 (30) 798; 1934 (38) 1329; 1940 (41) 1940; 1954 (48) 1761. 

Effect of amendment. — Prior to 1954 
amendment vacancy was filled by the Gen- 
eral Assembly or the Governor. 

§ 1-305. Oode Commissioner secretary of Committee and Director of Legis- 
lative Conncil; assistants. 

The Code Commissioner shall act as secretary for the Committee on Statutory 
Laws and shall be the Director of the Legislative Council. As such Director he 
shall employ, subject to the approval of the Legislative Council, such clerical and 
other assistants as may be necessary for the proper performance of the duties of 
the several divisions of the Legislative Council as provided for in §§ 30-105 and 
30-106. 

1942 Code § 2118; 1932 Code § 2118; 1931 (37) 168; 1940 (41) 1940; 1954 (48) 1761. 

Effect of amendment — 1954 amendment 
added all after "Committee on Statutory 
Laws." 

§ 1-307. Preparation of annnal cnmulative pocket supplements. 

There shall be prepared and published during the year 1953 and annually there- 
after, under the supervision and direction of the Committee on Statutory Laws and 
the Code Commissioner, cumulative pocket supplements to the Code of Laws, in 

14 



§ 1-307.1 1960 Cumulative Supplement § 1-314 

form suitable for insertion in the appropriate volumes of the Code of Laws, show- 
ing, in such detail as the Committee and Commissioner may deem proper and suf- 
ficient : 

(1) All general and permanent statutes enacted during the 1952 and subse- 
quent annual sessions of the General Assembly whereby die genera! statutory law 
as contained in the Code of Laws has been added to, amended, repealed, or other- 
wise affected ; 

(2) All changes, since the adoption of the Code, in the Constitution of the 
United States, the Constitution of South Carolina, the rules of the Supreme Court, 
the circuit courts and the probate courts of South Carolina and the rules and reg- 
ulations issued by departments and agencies of the State ; and 

(3) All decisions of the Supreme Court of South Carolina and of the courts of 
the United States, subsequent to those referred to in the then existing Code of Laws, 
construing the general statutory law and the Constitution of South Carolina. 

1942 Code § 2118; 1932 Code § 2118; 1931 (37) 168; 1940 (41) 1940; 1953 (48) 223. 

Editor's note. — See § 1-307.1 for re- wa9 in providing for pocket part9 as sup- 

mainder of amendment, 1953 p. 223. plements. But the section was entirely re- 
Effect of amendment — The principal written and numerous other changes were 

change effected by the 1953 amendment made. 

§ 1-307.1. Pocket supplements; revised volume of Code. 

If at any time the pocket supplement of any volume of the Code of Laws shall, 
in the judgment of the Committee and the Commissioner, become too bulky for 
convenient use, the Committee and the Commissioner shall cause to be prepared 
and published under their supervision and direction and shall submit to the Gen- 
eral Assembly for its consideration a revised volume setting forth the contents of 
the original volume revised and codified to include the effect of such cumulative 
pocket supplement ; and the General Assembly, having considered and approved 
such revision, shall, by bill passed under the formalities prescribed by the Consti- 
tution for the passage of laws, declare such revised volume to be substituted for 
the original volume as a part of the then existing Code of Laws and, to the extent 
of its contents, the only general statutory law of the State. But no pocket supple- 
ment shall be prepared or published for the year in which the Code Commissioner 
shall make his decennial report to the General Assembly as required by § 1-309 
of the Code. 

1953 (48) 223. 

§ 1-308. Contracts for pocket supplements or revision of volumes. 

The Committee on Statutory Laws may contract for the preparation and publi- 
cation of the annual cumulative pocket supplements to the Code of Laws and such 
contracts may be awarded for a period of not more than five years under such 
terms as the Committee may see fit; and, whenever the Committee and the Code 
Commissioner shall deem it advisable that any volume of the Code be revised and 
republished as provided in § 1-307.1, the Committee on Statutory Laws shall con- 
tract for such revision and republication. 

1942 Code § 2118; 1932 Code § 2118; 1931 (37) 168; 1940 (41) 1940; 1953 (48) 223. 

Effect of amendment. — The amendment 
completely rewrote the section. 

§ 1-314. Adoption of Code; subsequent amendment. 

Effect of codification. — In the codifica- change in phraseology, does not change 

tion of a statute, mere rearrangement of the meaning, purpose, operation or ef- 

its sections, or combination of several of feet thereof, and it is considered as a 

its sections into one code section, or the continuance of the old law with same 

breaking up of one of its sections into sev- meaning and effect and is not a new and 

eral code sections, with no substantial original enactment, unless an intention to 

IS 



§ 1-315 Code of Laws of South Carouna § 1-316 

alter the law clearly appears. State v. recur to original statute for purpose of as- 

Conally, 227 S. C. S07, 88 S. E. 2d 591 certaining its meaning. The ambiguity 

(1955). must be apparent in the revised version 

Insubstantial changes in language of itself, and resort to original enactment 

statute, incident to its codification, are not must be for the purpose of solving, not cre- 

to be taken as changing meaning of orig- ating it; and this is true even though the 

inal enactment. Raggio v. Woodmen of the codification involved a substantial change 

World Life Insurance Soc. 228 S. C. 340, in phraseology and meaning. State v. Con- 

90 S. E. 2d 212 (1955). ally, 227 S. C. 507, 88 S. E. 2d 591 (1955). 

In codification, changes in phraseology Where there is no ambiguity apparent in 
or omission or addition of words do not Code provisions, court cannot resort to 
necessarily require a change in construe- original enactments as a guide to construc- 
tion of the earlier act. State v. Conally, tion, and whether or not such result wai 
227 S. C. 507, 88 S. E. 2d 591 (1955). contemplated by Legislature is beside the 

In case of doubt and uncertainty as to point. Lowndes Hill Realty Company v. 

meaning of provision of code, resort in Greenville Concrete Company, 229 S. C. 

ascertaining its true meaning may properly 619, 93 S. E. 2d 855 (1956). 

be had to the act from which the provi- A general statute omitted from the code 

sion was derived. State v. Conally, 227 is lost, albeit through error or inadvertence. 

S. C. 507, 88 S. E. 2d 591 (1955). State v. Conally, 227 S. C. 507, 88 S. E. 

But where meaning of code provision 2d 591 (1955). 
is plain and unambiguous the court cannot 

§ 1-315. Publication of advance sheets of statutes; page proofs. 

The Code Commissioner shall, from time to time during any session of the 
General Assembly, furnish the public printer with all acts and joint resolutions of 
a general and permanent nature which have become law. The public printer as 
soon as practicable after delivery of such acts and joint resolutions shall furnish 
the Code Commissioner with page proof of all such acts and joint resolutions. 

1942 Code § 2114; 1932 Code § 2114; 1927 (35) 268; 1934 (38) 1329; 1941 (42) 119; 
1955 (49) 319. 

Effect of amendment. — The amendment to the printer and the return of page proofs 
eliminated specific schedules for the fur- by the printer to the Code Commissioner, 
nishing of copy by the Code Commissioner 

§ 1-316. Same; signatures and distribution thereof. 

Within three days after receiving such page proof corrected from the Code Com- 
missioner the public printer shall print the same in signatures and shall deliver as 
many of such signatures to the Code Commissioner as the Commissioner may order. 
The Code Commissioner on receipt of said signatures shall send a copy of such 
signatures to each of the following officers : the Governor, Supreme Court Justices, 
clerk of the Supreme Court, circuit judges, circuit solicitors, county judges, county 
solicitors, clerk of the court of each county, Attorney General, Secretary of State, 
Comptroller General, Adjutant General, State Treasurer, Chief Bank Examiner, 
Chairman of Tax Commission, Chief Highway Commissioner, State Health Officer, 
Director of the Division of Game of the South Carolina Wildlife Resources De- 
partment, chairman of the Public Service Commission, Commissioner of Agricul- 
ture, Chief Insurance Commissioner, State Budget and Control Board, State Super- 
intendent of Education, State Librarian, clerk of the House of Representatives, 
clerk of the Senate, secretary of the Historical Commission and the members of 
the General Assembly. The public printer shall not distribute any printed matter 
from such signatures of the Acts and Joint Resolutions unless authorized as 
hereinabove provided. 

1942 Code § 2114; 1232 Code § 2114; 1927 (35) 268; 1934 (38) 1329; 1941 (42) 119; 
1948 (45) 1643; 1952 (47) 2890; 1960 (51) 1646. 

Effect of amendments. — The amendment The 1960 amendment substituted Chief 

substituted the Director of the Division of Insurance Commissioner for Insurance 
Game for the former Chief Game Warden. Commissioner. 



16 



§ 1-353.1 1960 Cumulative Supplement § 1-363 

CHAPTER 6. 

State Budget and Control Board. 

Sec. 

1-353.1. Board may purchase supplies for 
counties and municipalities. 

§ 1-353.1. Board may purchase supplies for counties and municipalities. 

The purchasing and property division of the Board may purchase supplies and 
equipment for any county or municipality of the State when requested to do so by 
the governing body thereof. The purchases shall be made on the same terms and 
under the same rules and regulations as provided for the purchase of supplies by 
such division February 21 1957. The cost of any such purchase shall be borne by 
the political subdivision concerned, which shall be billed direct therefor. 

1953 (48) 401; 1957 (50) 50. 

Effect of amendment. — The 1957 amend- 
ment enlarged the section to include muni- 
cipalities. 

CHAPTER 6.1. 

Mines and Minerals. 

Article 1. Sec. 

General Provisions. 1-363. Lease subject to legislation conserv- 

Sec. ing oil, gas, etc. 

1-361.1. Budget and Control Board may 
negotiate for leases upon lands 
and waters of the State. 

Article 1. 

General Provisions. 

§ 1-361.1. Budget and Control Board may negotiate for leases upon lands and 
waters of the State. 

The State Budget and Control Board may negotiate for leases of oil, gas and 
other mineral rights upon all of the lands and waters of the State, including off- 
shore marginal and submerged lands. 

1958 (50) 1553. 

§ 1-363. Lease subject to legislation conserving oil, gas, etc. 

Editor's note. — Amendment, 1958 p. 
1553, to this section codified as § 1-361.1. 

CHAPTER 6.2. 

Atomic and Nuclear Energy. 

Sec. Sec. 

1-386. Committee on Peaceful Use of 1-394. License required to produce, pos- 
Atomic and Nuclear Energy; sess, etc., special nuclear ma- 
appointment, terial, by-product material, pro- 

1-387. Terms; per diem; mileage. duction facility or utilization fa- 

1-388. Duties. cility or to act as facility opera- 

1-391. Definitions for §§ 1-391 to 1-395. tor. 

1-392. State endorses program for develop- 1-395. Departments and agencies to make 

ment and utilization of atomic studies as to the need of changes 

energy for peaceful purposes; in laws and regulations from 

State's policy. presence of special nuclear ma- 

1-393. State's policy on adapting its laws terials and by-product materials 
and regulations to meet new and from the operation of pro- 
conditions resulting from de- duction or utilization facilities. 



velopment of industries produc- 
ing or utilizing atomic energy. 



17 



§ 1-386 Code of Laws of South Carolina § 1-391 

§ 1-386. Committee on Peaceful Use of Atomic and Nuclear Energy; ap- 
pointment. 

There is hereby created a committee of eleven members, three of whom shall be 
members of the Senate to be appointed by the President of the Senate, three of 
whom shall be members of the House of Representatives to be appointed by the 
Speaker of the House and five members, one to represent industry and business, 
one to represent banking, one to represent labor, one to represent agriculture and 
one to represent the medical profession, to be appointed by the Governor. None 
of the Governor's appointees shall be a member of the Legislature. 

1960 (51) 1688. 

§ 1-387. Terms; per diem; mileage. 

The term of office of members appointed by the Governor shall be coterminous 
with that of the Governor, and the terms of office of the Senators and the members 
of the House of Representatives shall be coterminous with their terms of office in 
the respective bodies of the General Assembly. The members shall receive the 
usual per diem and mileage for each day they are actually engaged in the busi- 
ness of the Committee ; but its expenditure shall not exceed two thousand dollars. 

1960 (51) 1688. 

§ 1-388. Duties. 

The Committee shall be a clearing house for all atomic and nuclear material 
concerning or relating to the use of atomic and nuclear energy for peaceful purposes, 
and be charged with the duty and responsibility of supervising the uses of atomic 
and nuclear energy for peaceful purposes. It shall institute and pursue a study of the 
development and utilization of atomic energy, and the sundry by-products of 
nuclear fission and fusion for peaceful purposes, the control of air and water pol- 
lution, and shall make a full report to the General Assembly from time to time, with 
legislation, if any, that is considered necessary to encourage participation in the 
development and utilization of atomic energy, fissionable materials, radioactive 
matter and related subjects for peaceful purposes to the maximum extent com- 
patible with the security, the health and safety of the public, including but not 
limited to the necessity and desirability, if any, of measures for control of dangers 
to the public or amelioration of damages resulting therefrom. The Committee 
shall also consider the relative responsibility of the State and its respective sub- 
divisions thereto with relation to all such matters and all agencies of the State 
shall assist the Committee in its work. 

1960 (51) 1688. 

§ 1-391. Definitions for §§ 1-391 to 1-395. 

As used in §§ 1-391 to 1-395: 

( 1 ) The term "atomic energy" means all forms of energy released in the course 
of nuclear fission or nuclear transformation. 

(2) The term "by-product material" means any radioactive materials, except 
special nuclear materials, yielded in or made radioactive by exposure to the radia- 
tion incident to the process of producing or utilizing special nuclear materials. 

(3) The term "production facility" means any equipment or device capable of 
the production of special nuclear material in such quantity as to be of significance to 
the common defense and security or in such manner as to affect the health and 
safety of the public ; or any important component part especially designed for such 
equipment or device. 

(4) The term "special nuclear material" means plutonium and uranium en- 
riched in the isotope 233 or in the isotope 235, and any other material which the 
State Budget and Control Board declares by order to be special nuclear material 

18 



§ 1-392 1960 Cumulative Supplement § 1-394 

after the United States Atomic Energy Commission has determined the material to 
be such ; or any material artificially enriched by any of the foregoing. 

(5) The term "utilisation facility" means any equipment or device, except an 
atomic weapon, capable of making use of special nuclear materials in such quantity 
as to be of significance to the common defense and security or in such manner as 
to affect the health and safety of the public, or peculiarly adapted for making use 
of atomic energy in such quantity as to be of significance to the common defense 
and security or in such manner as to affect the health and safety of the public ; or 
any important component part especially designed for such equipment or device. 

1956 (49) 1989. 

§ 1-392. State endorses program for development and utilization of atomio 
energy for peaceful purposes; State's policy. 
The State endorses the action of the Congress of the United States in enacting the 
Atomic Energy Act of 1954 to institute a program to encourage the widespread 
participation in the development and utilization of atomic energy for peaceful pur- 
poses to the maximum extent consistent with the common defense and security and 
with the health and safety of the public ; and therefore declares the policy of the 
State to be : 

(1) To cooperate actively in the program thus instituted; and 

(2) To the extent that the regulation of special nuclear materials and by-product 
materials, of production facilities and utilization facilities and of persons operating 
such facilities may be within the jurisdiction of the State, to provide for the exercise 
of the State's regulatory authority so as to conform, as nearly as may be, to the 
Atomic Energy Act of 1954 and regulations issued thereunder, to the end that there 
may, in effect, be a single harmonious system of regulation within the State. 

1956 (49) 1989. 

§ 1-393. State's policy on adapting its laws and regulations to meet new con- 
ditions resulting from development of industries producing or 
utilizing atomic energy. 
The State recognizes that the development of industries producing or utilizing 
atomic energy may result in new conditions calling for changes in many of the laws 
of the State and in regulations issued thereunder with respect to health and safety, 
working conditions, workmen's compensation, transportation, public utilities, life, 
health, accident, fire and casualty insurance, the conservation of natural resources, 
including wildlife, and the protection of streams, rivers and airspace from pollution, 
and therefore declares the policy of the State to be: 

(1) To adapt its laws and regulations to meet the new conditions in ways that 
will encourage the healthy development of industries producing or utilizing atomic 
energy while at the same time protecting the public interest; and 

(2) To initiate continuing studies of the need for changes in the relevant laws 
and regulations of the State by the respective departments and agencies of the State 
which are responsible for their administration; and 

(3) To assure the co-ordination of the studies thus undertaken, particularly with 
other atomic industrial development activities of the State and with the development 
and regulatory activities of other states and of the Government of the United States. 

1956 (49) 1989. 

§ 1-394. License required to produce, possess, etc., special nuclear material, 
by-product material, production facility or utilization facility or 
to act as facility operator. 
No person shall manufacture, construct, produce, transfer, acquire or possess any 
special nuclear material, by-product material, production facility or utilization facil- 
ity or act as an operator of a production or utilization facility wholly within this 



§ 1-395 Code of Laws of South Carolina § 1-395 

State unless he shall have first obtained a license or permit for the activity in which 
he proposes to engage from the United States Atomic Energy Commission if, pur- 
suant to the Atomic Energy Act of 1954, the Commission requires a license or 
permit to be obtained by persons proposing to engage in activities of the same type 
over which it has jurisdiction. 
1956 (49) 1989. 

§ 1-395. Departments and agencies to make studies as to the need of changes 

in laws and regulations from presence of special nuclear materials 

and by-product materials and from the operation of production 

or utilization facilities. 

Each of the following departments and agencies of the State Government shall 

initiate and pursue continuing studies as to the need, if any, for changes in the laws 

and regulations administered by it that would arise from the presence within the 

State of special nuclear materials and by-product materials and from the operation 

herein of production or utilization facilities : 

(1) The State Board of Health, particularly as to hazards, if any, to the public 
health and safety. 

(2) The Department of Labor, particularly as to hazardous working conditions, 
if any. 

(3) The Industrial Commission, particularly as to the time and character of 
proof of claims of injuries and the extent of the compensation allowable therefor. 

(4) The State Highway Department, particularly as to the transportation of 
special nuclear materials and by-product materials on highways of the State. 

(5) The Public Service Commission, particularly as to the transportation of 
special nuclear materials and by-product materials by common carriers not in inter- 
state commerce and as to the participation by public utilities subject to its jurisdic- 
tion in projects looking to the development of production or utilization facilities for 
industrial or commercial use. 

(6) The Chief Insurance Commissioner, particularly as to the insurance of per- 
sons and property from hazards to life and property resulting from atomic develop- 
ment. 

(7) The State Forestry Commission, the Wildlife Resources Department and 
the Aeronautics Commission, particularly as to the hazards, if any, to the natural 
resources of the State, including wildlife. 

(8) The Water Pollution Control Authority, as to the protection of rivers and 
streams and preventing pollution of surface and ground waters of the State. 

(9) Such other departments and agencies, including departments and agencies 
of political subdivisions of the State, as the State Budget and Control Board may 
direct and for the purposes specified by it. 

1956 (49) 1989; 1960 (51) 1646. 

Effect of amendment. — The 1960 amend- 
ment changed Insurance Commissioner to 
Chief Insurance Commissioner. 



20 



§ 1-412 



1960 Cumulative Supplement 



§ 1-416 



CHAPTER 7. 
Grounds and Buildings. 



Sec. 
1-412. 

1-413 
1-416. 



1-417. 



1-417.1 



1-417 
1-417 
1-417, 

1-417. 



Article 2. Sec. 

Trespasses. 

Use of State House or grounds when 1-417. 

not authorized. 
to 1-415. [Repealed.] 

Injury to grass, flowers, trees, build- 1-417 
ings, etc., on grounds of State 
House, Governor's Mansion and 1-418. 
certain State office buildings in 
Columbia. 
Use of driveways and parking spaces 1-420, 
on certain State grounds in Co- 
lumbia. 
Same; parking lot on corner of 

Main and Senate Streets in Co- 1-431. 
lumbia. 
Criminal laws effective within sucli 

grounds. 
Traffic laws applicable to operation 1-461. 

of motor vehicles therein. 
Penalties to violate §§ 1-417, 1-417.1 

and 1-417.3. 1-461. 

Powers of police and watchmen em- 
ployed by Budget and Control 

1-463 

Article 2. 



Board, highway patrolmen and 
Columbia police therein. . 

6. Jurisdiction of Columbia recorder 

and Columbia district magistrate 
therein. 

7. Parking tickets for traffic and park- 

ing violations therein. 
Permitted use of State House 
grounds for certain purposes not 
restricted. 
Use of parking lots on State prop- 
erty in Columbia. 
Article 3. 
Insurance. 
State public buildings and State-sup- 
ported institutions. 
Article 4. 
General Provisions. 

1. Public bidding required on certain 

construction contracts; awarding 
of contracts. 

2. Same; inapplicable to certain State 

Highway Department and peni- 
tentiary buildings. 
[Repealed.] 



Trespasses. 
§ 1-412. Use of State House or grounds when not authorized. 

It shall he unlawful to use the State House or grounds for any purpose not 
authorized by law. Any violation of the provisions of this section shall be punish- 
able by imprisonment for a period not exceeding thirty days or by a fine of not over 
one hundred dollars. 

1942 Code § 1195; 1932 Code § 1195; 1931 

Cross reference. — As to use of driveways 
and parking on certain State property, in- 
cluding State House grounds, see §§ 1-417 
et seq. 

Editor's note. — See § 1-418 for provisions 
formerly in this section permitting use of 



(37) 150; 1959 (51) 60. 

State House grounds for certain purposes. 
Effect of amendment. — The 1959 amend- 
ment eliminated provisions relating to use 
of driveway in front of the State House and 
parking motor vehicles thereon. 



§§ 1-413 to 1-415. Injury to trees, grass, shrubs, etc. ; punishment for viola- 
tion of § 1-413. 
Repealed by A. & J. R. 1959 (51) 60. 

Cross reference. — See now §§ 1-416 and 
1-419. 

§ 1-416. Injury to grass, flowers, trees, buildings, etc., on grounds of State 
House, Governor's Mansion and certain State office buildings in 
Columbia. 

It shall be unlawful for any person to trespass upon the grass plots or flower beds 
of the grounds of the State House or the Governor's Mansion, or of the grounds 
surrounding any of the State office buildings located in the area bounded by As- 
sembly, Gervais, Bull and Pendleton Streets in Columbia, to damage or deface any 
of the buildings, or to cut down, deface, mutilate or otherwise injure any of the 

21 



§ 1-417 Code of Laws of South Carolina § 1-417.5 

statues, trees, shrubs, grasses or flowers on the grounds or commit any other 
trespass upon any property of the State, real or personal, located thereon. 
1959 (51) 60. 

§ 1-417. Use of driveways and parking spaces on certain State grounds in 
Columbia. 

It shall be unlawful for any person : 

(1) Except State officers and employees and persons having lawful business in 
the buildings, to use any of the driveways, alleys or parking spaces upon any of the 
property of the State, bounded by Assembly, Gervais, Bull and Pendleton Streets 
in Columbia upon any regular weekday, Saturdays and holidays excepted, between 
the hours of 8 :30 a. m. and 5 :30 p. m., whenever the buildings are open for busi- 
ness; or 

(2) To park any vehicle except in the spaces and manner marked and designated 
by the State Budget and Control Board, in cooperation with the Highway Depart- 
ment, or to block or impede traffic through the alleys and driveways. 

1959 (51) 60. 

§ 1-417.1. Same; parking lot on corner of Main and Senate Streets in Co- 
lumbia. 

The parking lot located on the corner of Main and Senate Streets in Columbia 
shall be reserved exclusively for members of the General Assembly, the clerks, 
chaplains, sergeants at arms and reading clerks of both houses and the Director of 
the Legislative Council during such time as the Legislature is in session, after which 
they shall be reserved as other State parking lots. The use of this lot by unauthorized 
persons shall constitute a misdemeanor, punishable as provided in § 1-419. 

1959 (51) 60. 

§ 1-417.2. Criminal laws effective within such grounds. 

All of the general criminal laws of the State are hereby declared to be in full 
force and effect within such area. 
1959 (51) 60. 

§ 1-417.3. Traffic laws applicable to operation of motor vehicles therein. 

All of the State laws regulating traffic upon the highways and streets shall apply 
to the operation of motor vehicles within such area except that it shall be unlawful 
to operate a motor vehicle on any of such property at a speed in excess of ten miles 
per hour. 

1959 (51) 60. 

§ 1-417.4. Penalties to violate §§ 1-417, 1-417.1 and 1-417.3. 

The violation of any of the provisions of §§ 1-417, 1-417.1 and 1-417.3 shall 
constitute a misdemeanor and, upon conviction thereof, the offender shall be 
punished by a fine of not more than one hundred dollars or imprisonment for not 
more than thirty days. The penalties for violation of any of the other criminal law9 
of the State shall be as provided for by law on March 12 1959. 
1959 (51) 60. 

§ 1-417.5. Powers of police and watchmen employed by Budget and Control 
Board, highway patrolmen and Columbia police therein. 
The policemen and watchmen employed by the Budget and Control Board for 
the protection of such property are hereby vested with all of the powers, privileges 
and immunities of constables while on such area or in fresh pursuit of those violating 
the law therein, if they take and file the oath required of peace officers, execute and 
file bond in the form required of State constables in the amount of one thousand dol- 

22 



§ 1-417.6 1960 Cumulative Supplement § 1-431 

lars with the Board and be duly commissioned by the Governor. Also, all lawful 
highway patrolmen and police officers of Columbia may enforce the criminal laws 
of this State and the provisions of §§ 1-416 to 1-417.3 and 1-417.6 within such area. 
1959 (51) 60. 

§ 1-417.6. Jurisdiction of Columbia recorder and Columbia district magistrate 
therein. 

The recorder of Columbia and the magistrate of the Columbia district are hereby 
separately vested with all jurisdiction necessary to hear, try and determine criminal 
cases involving any violations of §§ 1-416 to 1-417.3 when the punishment does not 
exceed a fine of one hundred dollars or imprisonment of thirty days. 

1959 (51) 60. 

§ 1-417.7. Parking tickets for traffic and parking violations therein. 

In connection with traffic and parking violations only, such policemen and watch- 
men, State highway patrolmen and policemen of Columbia may issue and use park- 
ing tickets of the type used by Columbia on March 12 1959, with such changes as are 
necessitated hereby, to be prepared and furnished by the Budget and Control Board, 
upon the issuance of which the procedures shall be followed as prevail in connection 
with the use of parking tickets by Columbia on March 12 1959. Nothing herein 
shall restrict the application and use of regular arrest warrants. 

1959 (51) 60. 

§ 1-418. Permitted use of State House grounds for certain purposes not re- 
stricted. 

Nothing contained in §§ 1-412 and 1-416 to 1-417.6 shall be construed to abridge 
the authority of the State Budget and Control Board to grant permission to use the 
State House grounds for educational, electrical decorations and similar purposes. 

1959 (51) 60. 

§ 1-420. Use of parking lots on State property in Columbia. 

Parking lots which are situated on State property in Columbia shall be reserved 
for State employees except as otherwise provided in § 1-417. They shall be policed 
by the State Highway Department and no person not authorized by this section 
shall be allowed to occupy same. 

1958 (50) 1713; 1959 (51) 60. 

Cross reference. — As to use of driveways eliminated the last sentence reserving park- 
and parking on certain State grounds, see ing lot at corner of Main and Senate Streets 
§§ 1-417 et seq. during legislative sessions for certain of- 

Effect of amendment. — The 1959 amend- ficials and employees. See now § 1-417.1. 
ment added exception to first sentence and 

Article 3. 
Insurance. 
§ 1-431. State public buildings and State-supported institutions. 

All insurance on public buildings and on the contents thereof of the State and of 
all institutions supported in whole or in part by the State shall be carried by the 
State Budget and Control Board. No insurance shall be carried on the State House. 
Any building and the contents thereof owned by the State Highway Department 
may be insured by the Board, with the consent or approval of such board, or the 
Department shall have the alternative of assuming its own risks. 

1942 Code § 2180; 1936 (39) 1668; 1950 (46) 3605; 1956 (49) 1751. 

Effect of amendment. — The 1956 amend- 
ment added the last sentence. 

23 



§ 1-432 Code of Laws of South Carolina § 1-463 

§ 1-432. Public buildings of counties. 

Georgetown County Memorial Hospital meet requirements of this section. Atty. 
la not a county owned institution so as to Gen. Op., Oct. 31, 1958. 

Article 4. 

General Provisions. 

§ 1-461.1. Public bidding required on certain construction contracts ; award- 
ing of contracts. 

No public building, or addition thereto, constructed from State funds, costing 
more than ten thousand dollars shall be constructed in the State unless competitive 
bids for the contract therefor shall have been advertised in a newspaper of gen- 
eral circulation in the State, at least three times over a period of thirty days. The 
right to reject any and all bids shall be reserved. All bids shall be opened at the same 
time. All proposals shall be opened in public and shall be recorded in the minutes 
of the board or governing body, and the award shall be made to the lowest re- 
sponsible bidder, taking into consideration quality of workmanship, past performance 
of low bidder and time specified in the proposals for the performance of contract 
When bids are received as a result of advertisement for the construction of public 
buildings to be built with funds furnished by the State Educational Finance Com- 
mission and the lowest bid is rejected and another accepted, any contract based on 
the bid shall be subject to the approval of the said commission. A performance bond 
shall be required from the successful bidder. 

1954 (48) 1506; 1959 (51) 122. 

Effect of amendment. — The 1959 amend- within purview of this section, and adver- 
ment added the sentence relating to State tising and competitive bidding for construc- 
Educational Finance Commission. tion contract not required. Atty. Gen. Op., 

This section inapplicable to building con- Apr. 27, 1959. 
structed with privately donated funds. — Provisions of this section not applicable 

Building for Medical College of South to contract for waterproofing public build- 
Carolina authorized by Act No. 321 of the ing, and such contract may be entered into 
Acts of 1959, 51 Stat. 598, to be constructed without competitive bidding. Atty. Gen. 
only from private grants and donations not Op., May 18, 1959. 

§ 1-461.2. Same; inapplicable to certain State Highway Department and 
Penitentiary buildings. 

Nothing in § 1-461.1 shall prevent the State Highway Department or the Peni- 
tentiary from constructing its own buildings with its own labor without such ad- 
vertising. 

1954 (48) 1506; 1956 (49) 1700. 

Effect of amendment. — The 1956 amend- 
ment included the State Highway Depart- 
ment in this section. 

§ 1-463. Water supply for Capitol and State institutions in Columbia. 
Repealed by A. & J. R. 1955 (49) 329. 



24 



§ 1-522 1960 Cumulative Supplement § 1-601 

CHAPTER 8. 

Printing and State Publications Generally. 

Article 3. 
Contracts for Printing. 

Sec. 

1-522. Proposals; letting contracts. 

Article 3. 
Contracts for Printing. 
§ 1-522. Proposals; letting contracts. 

The proposals shall state at what price per page the bidder will execute the 
several classes of work, respectively, and what additional charge per page he will 
make for rule and figure work. A proposal for the public printing, enclosed in an 
envelope, sealed and endorsed "Proposal for the Public Printer," shall be filed with 
the clerk or secretary of the Board within five days of the date advertised by the 
Board for the awarding of the contract for public printing and any such pro- 
posals shall be opened by the chairman of the Board or, in his absence, by the 
acting chairman, in the presence of the Board; and the contract may be awarded 
by the Board to the lowest responsible bidder. If the bids received be deemed 
unacceptable, the Board may reject all bids and call for new bids. 

1942 Code § 2090; 1932 Code § 2090; 1926 (34) 908; 1950 (46) 3605; 1960 (51) 1747. 

Effect of amendment. — The 1960 amend- 
ment eliminated wax sealing of envelope 
containing proposal. 

CHAPTER 9. 
Census. 

Sec. Sec. 

1-600. United States Census of 1950 1-600.1. Same; population of Newberry 
adopted. County for distribution of State 

funds. 
1-601. [Repealed.] 

§ 1-600. United States Census of 1950 adopted. 

The United States Census of 1950 is hereby adopted as the true and correct 
enumeration of the inhabitants of the several counties, municipalities and other 
governmental subdivisions of this State. 

1952 (47) 1694. 

§ 1-600.1. Same; population of Newberry County for distribution of State 
funds. 

In the distribution of funds by the State among the several counties on the basis 
of population, the population in the Macedonia district, recently annexed to New- 
berry County, and containing one hundred and eight persons, shall be added to the 
population of Newberry County as shown by the official 1950 census of the United 
States. 

1954 (48) 2410. 

§ 1-601. United States Census of 1940 adopted. 
Repealed by A. & J. R. 1952 (47) 1694. 
Cross reference. — See now § 1-600. 



25 



§ 1-645 



Code of Laws of South Carolina 



§ 1-745 



CHAPTER 11. 
Bonds of Political Subdivisions. 

Article 1. 
General Provisions. 

§ 1-645. Bonds incontestable from twenty days after filing. 

Cited in Morgan v. Feagin, 230 S. C. 
315, 95 S. E. 2d 621 (1956). 

CHAPTER 12. 



State Finances. 



Sec 

1-741 

1-742 

1-744 

1-745 

1-746 

1-747 



Article 3. 
Deposit of State Funds. 



Sec. 

1-796. 
1-797. 



1-781 
1-781 
1-781 



1-793 



1-798. 
1-799. 
1-800. 
1-802. 



1-812. 



1-841. 
1-849. 



[Repealed.] 

Board may invest funds in certain 

obligations and shares. 
Powers of Board as to investments. 
[Repealed.] 
[Repealed.] 
[Repealed.] 

Article 6. 
Comptroller General. 
Salary, fees, etc. 

Article 7. 
State Treasurer. 
Salary and clerks. 
Funds from certain sales in Clark 
Hill project sent to counties. 



Vault for State Treasurer. 
Deposit of State funds in banks. 
Indemnity bond required. 
Collateral as security. 
Reports from banks to Treasurer. 
Banks to report deposits monthly to 
Comptroller General. 
Article 4.11. 
The General Fund Reserve. 
Established. 

1. Maintenance. 

2. Use. 
Article 5. 

The Sinking Fund. 
, Sales of property not in actual public 
use; exception. 

Article 1. 
General Provisions. 
§ 1-701. Money to be spent only for purposes specified. 

Applied in McKown v. Daniel, 217 S. 
C. 510, 61 S. E. 2d 163 (1950). 

§ 1-702. Disbursing officers exceeding or transferring appropriations. 

Applied in McKown v. Daniel, 217 S. 
C. 510, 61 S. E. 2d 163 (1950). 

Article 3. 

Deposit of State Funds. 

§ 1-741. Vault for State Treasurer. 

Editor's note. — The amendment, 1955 amended this section by adding "or trust 
(49) 151, to § 1-745 may have indirectly company" 



after the word "bank." 



§ 1-742. Deposit of State funds in banks. 

Editor's note. — The amendment, 1955 amended this section by adding "or trust 
(49) 151, to § 1-745 may have indirectly company" after the word "bank." 



§ 1-744. Indemnity bond required. 

Editor's note. — The amendment, 1955 
(49) 151, to § 1-745 may have indirectly 



amended this section by adding "or trust 
company" after the word "bank." 



§ 1-745. Collateral as security. 

Any bank or trust company being made a State depository may furnish, instead 
of the surety bond required by § 1-744, as security for such deposit of State funds, 
United States Government bonds, Federal Farm Loan bonds issued by Federal 

26 



§ 1-746 1960 Cumulative Supplement § 1-781.2 

land banks pursuant to the Federal Farm Loan Act as amended, Federal Inter- 
mediate Credit Bank debentures issued by Federal intermediate credit banks pur- 
suant to the Federal Farm Loan Act as amended, debentures issued by the Central 
Bank for Cooperatives and regional banks for cooperatives organized under the 
Farm Credit Act of 1933, or by any of such banks, and bonds or other obligations 
of this State or any political subdivision thereof. Such collateral security shall be 
filed with the proper officers within one week after deposit shall be made, or at 
the time of deposit, if required. 

1942 Code § 2200; 1932 Code § 2200; 1925 (34) 273; 1926 (34) 1049; 1952 (47) 1892; 
1955 (49) 151. 

Effect of amendments. — Prior to the The 1955 amendment included as deposi- 

1952 amendment this section permitted the tories trust companies and permitted use of 
use of "Federal Land Bank bonds" and debentures of Central Bank of Coopera- 
"Joint Stock Land Bank bonds" in lieu of tives and regional banks for cooperatives or 
the bonds issued under the Federal Farm any of such banks. 
Loan Act and the Farm Credit Act of 1933. 

§ 1-746. Reports from banks to Treasurer. 

Editor's note. — The amendment, 1955 amended this section by adding "or trust 
C49) 151, to § 1-745 may have indirectly companies" after the word "banks." 

§ 1-747. Banks to report deposits monthly to Comptroller General. 

Editor's note. — The amendment, 1955 amended this section by adding "o. trust 
(49) 151, to § 1-745 may have indirectly companies" after the word "banks." 

Article 4.11. 

The General Fund Reserve. 
§ 1-781. Established 

There shall be established and maintained a fund which shall be carried in a 
special account in the State Treasury, which shall be known and designated as 
"The General Fund Reserve" The maximum amount of such reserve shall be 
three million dollars. 

1954 (48) 1566. 

§ 1-781.1. Maintenance. 

On or before September 30 of each year the State Budget and Control Board 
shall determine the amount by which the State's revenues applicable thereto ex- 
ceeded the sum of (a) actual expenditures for normal maintenance and operation 
of the State Government for the fiscal year immediately preceding including ex- 
penditures to political subdivisions of the State based on established percentages of 
revenues but not including expenditures for highway purposes and (b) unex- 
pended balances of continuing appropriations made during the fiscal year im- 
mediately preceding. From such excess revenues so determined, if any, there shall 
be transferred to such reserve an amount sufficient to bring it to the sum of 
three million dollars but not in excess thereof. 

1954 (48) 1566. 

§ 1-781.2. Use. 

The General Fund Reserve shall be used by transfer to the State's General 
Fund as directed by the Board to cover or apply to any annual deficit which may 
occur by reason of general fund expenditures in any year plus other outstanding 
appropriation liabilities exceeding revenues applicable thereto and for no other 
purpose. 

1954 (48) 1566. 



27 Volume 1 



§ 1-793 Code of Laws of South Carolina § 1-798 

Article 5. 

The Sinking Fund. 

§ 1-793. Sales of property not in actual public use; exception. 

Editor's note. — Section 65-2771 does not 
provide for purchases for the Board. 

§ 1-796. Use of proceeds of sales. 
Repealed by A. & J. R. 1959 (51) 126. 
Cross reference. — See now § 1-797. 

§ 1-797. Board may invest funds in certain obligations and shares. 

The Board may invest and reinvest all funds of the sinking fund of the State in 
any of the following : 

(1) Obligations of the United States or obligations fully guaranteed both as to 
principal and interest by the United States ; 

(2) Obligations of the Federal intermediate credit banks, Federal home loan 
banks, Federal national mortgage association, banks for cooperatives and Federal 
land banks ; 

(3) Obligations of this State; 

(4) General obligations of other states of the United States, but not of the 
municipal corporations or subdivisions thereof ; 

(5) General obligations of any of the counties, political subdivisions or municipal 
corporations of this State; 

(6) Revenue bonds of any county, political subdivision, municipal corporation or 
authority of this State, if the statute pursuant to which such revenue bonds are 
issued shall declare the same to be legal investments ; 

(7) Obligations issued or unconditionally guaranteed by the International Bank 
for Reconstruction and Development ; 

(8) Obligations of any corporation within the United States if such obligations 
bear either of the two highest ratings of at least two nationally recognized rating 
services ; 

(9) Obligations of any corporation incorporated in this State if such obligations 
bear either of the three highest ratings of at least two nationally recognized rating 
services ; 

(10) In the shares of Federal savings and loan associations and State chartered 
building or savings and loan associations in which deposits are guaranteed by the 
Federal Savings and Loan Insurance Corporation, not to exceed the amount cov- 
ered by insurance. 

1942 Code § 2141; 1932 Code § 2141; Civ. C. '22 § 102; Civ. C. '12 § 97; Civ. C. '02 
§ 93; 1896 (22) 184; 1950 (46) 3605; 1959 (51) 126. 

Effect of amendment. — The 1959 amend- provided for investment of the sinking fund 
ment eliminated provision for lending of as above detailed, 
sinking fund secured by State bonds and 

§ 1-798. Powers of Board as to investments. 

Subject to the limitations set forth in § 1-797 the Board may hold, purchase, sell, 
assign, transfer and dispose of any of the securities and investments in which the 
sinking fund shall have been invested. 

1942 Code §§ 2142, 2143; 1932 Code § 2142; Civ. C. '22 § 103; Civ. C. '12 § 98; Civ. C. 

'02 § 94; 1897 (22) 440; 1911 (27) 223; 1939 (41) 215; 1941 (42) 150; 1950 (46) 3605; 1959 
(51) 126. 

Effect of amendment. — The 1959 amend- bonds and provided for the powers of the 
ment eliminated provisions for lending of Roard as to its investments, 
sinking fund other than by purchasing State 

28 



§ 1-799 1960 Cumulative Supplement § 1-849 

§ 1-799. Application for loans; proration when applications exceed fund. 

Repealed by A. & J. R. 1959 (51) 126. 
Cross reference. — See now §§ 1-797 and 
1-798. 

§ 1-800. Rediscounting notes. 

Repealed by A. & J. R. 1959 (51) 126. 

Cross reference. — See now §§ 1-797 and 
1-793. 

§ 1-802. Violation of § 1-798 by county treasurers. 

Repealed by A. & J. R. 1959 (51) 126. 

Article 6. 

Comptroller General. 
§ 1-812. Salary, fees, etc. 

The Comptroller General shall receive an annual salary of eleven thousand dollars. 
The fees and perquisites of the office shall be paid into the State Treasury. 

1942 Code § 3135; 1932 Code § 3135; Civ. C. '22 § 831; Civ. C. '12 § 746; Civ. C. "02 
§ 672; G. S. 529; R. S. 588; 1801 (5) 410, 411; 1868 (14) 135; 1877 (16) 247; 1893 (21) 
416; 1900 (23) 418; 1919 (31) 4; 1921 (32) 204; 1924 (33) 1182; 1948 (45) 1716; 1954 
(48) 1566; 1957 (50) 404. 

Effect of amendments. — The 1954 amend- The 1957 amendment increased salary to 

ment increased salary to ten thousand eleven thousand dollars from ten thousand 

dollars from seven thousand five hundred dollars, 
dollars. 

Article 7. 
State Treasurer. 

§ 1-841. Salary and clerks. 

The State Treasurer shall receive a salary at the rate of eleven thousand dollars 
per annum. He shall employ a chief clerk and two bookkeepers. 

1942 Code § 3159; 1932 Code § 3159; Civ. C. '22 § 854; Civ. C. '12 § 770; Civ. C. '02 
{ 696; G. S. 555; R. S. 613; 1879 (17) 128; 1893 (21) 416; 1919 (31) 4; 1924 (33) 1182; 

1948 (45) 1716; 1954 (48) 1566; 1958 (50) 1721. 

Effect of amendment. — The 1954 amend- The 1958 amendment increased salary to 

ment increased salary to ten thousand dol- eleven thousand dollars from ten thousand 
lars from seven thousand five hundred dol- dollars. 
lars. 

§ 1-849. Funds from certain sales in Clark Hill project sent to counties. 

The State Treasurer shall remit all funds received by him from the United 
States Government, or any agency thereof, when such funds are derived from 
the sale or lease of any property belonging to the United States Government and 
located in the Clark Hill Project area, to the treasurer of the county in which the 
transaction arose. Any such funds received by a county treasurer shall be placed 
in the general county fund. 

1952 (47) 2169. 



29 



§ 2-6 Code of Laws of South Carolina § 2-55 



Tide 2. 
Aeronautics. 

Chap. 1. General Legal Principles, § 2-21. 

3. Airports Generally, § 2-104. 
3.1. Airlines, §§ 2-151 to 2-152. 

4. Particular Airports, §§ 2-207 to 2-434. 

CHAPTER 1. 
General Legal Principles. 

Article 2. 
Miscellaneous Provisions. 
Sec. 

2-21. Liability of owners and operators 
generally to guests. 

Article 1. 
Uniform State Law for Aeronautics. 
§ 2-6. Liability for damages. 

The effect of this section is to make the Claims Act for damages caused by the fall- 
infliction of injury or damage by the opera- ing of government airplanes operated by 
tion of an airplane a wrongful act in itself, employees of the government on govern- 
and recovery may be had against the ment business. United States v. I'raylou, 
United States under the Federal Tort 208 F. 2d 291 (1953). 

§ 2-8. Crimes and torts. 

Applied in Eastern Air Lines v. United 
States, 110 F. Supp. 491 (1952). 

Article 2. 
Miscellanco us Provisions. 
§ 2-21. Liability of owners and operators generally to guests. 

No person transported by the owner or operator of an aircraft as his guest 
without payment for such transportation shall have a cause of action for damages 
against such aircraft, its owner or operator for injury, death or loss in case of 
accident unless such accident shall have been intentional on the part of such 
owner or operator or caused by his heedlessness or his reckless disregard of the 
rights of others. 

1942 Code § 5908; 1932 Code § 5908; 1930 (36) 1164; 1935 (39) 356; 1960 (51) 1926. 

Effect of amendment. — The 1960 amend- cited this section as applicable, it was ap- 
ment substituted aircraft for airship. plying § 46-801 which is similar guest 

Cited in Meek v. Harris, 256 F. 2d 579 statute relating to motor vehicles.) 
(1958). (Editor's note. — While the court 

CHAPTER 2. 
Uniform State Aeronautical Regulatory Law. 

§ 2-55. Duties and powers of Commission. 

Rules and regulations promulgated under all airports and landing strips in this State, 
authority of this section, see Rules and except those publicly owned, are subject to 
Regulations, Aeronautics Commission, in jurisdiction of the Commission, it may pro- 
Volume 7. hibit use of any such airport or airstrip 

All airports except those publicly owned which it deems to be unsafe. Atty. Gen. 

under jurisdiction of Commission. — Since Op. No. 539, dated May 22, 1957. 



30 



§ 2-101 1960 Cumulative Supplement § 2-119 

CHAPTER 3. 

Airports Generally. 
Article 1. 
Uniform Airports Act. 
Sec. 

2-104. Acquisition of property by condem- 
nation or otherwise. 

Article 1. 

Uniform Airports Act. 
§ 2-101. Short title. 

This article cited in Berry v. Milliken, 
234 S. C. 518, 109 S. E. 2d 354 (1959). 

§ 2-102. Establishment of airports. 

Stated in Berry v. Milliken, 234 S. C. 
518, 109 S. E. 2d 354 (1959). 

§ 2-104. Acquisition of property by condemnation or otherwise. 

Private property needed by the Commission, the Adjutant and Inspector General 
of South Carolina, or a county, municipality or other political subdivision for an 
airport or landing field or for the expansion of an airport or landing field may be 
acquired by grant, purchase, lease or other means, if such political subdivision or the 
Commission, as the case may be, is able to agree with the owner of such property 
on the terms of such acquisition and otherwise by condemnation in the manner pro- 
vided by the law under which such political subdivision or the Commission is au- 
thorized to acquire real property for public purposes. 

1942 Code § 7112-33; 1937 (40) 466; 1942 (42) 1465, 1499; 1957 (50) 295. 

Effect of amendment. — The 1957 amend- 
ment included the Adjutant and Inspector 
General in this section. 

§ 2-116. Powers as to such airports and landing fields. 

Use by public may not be excluded. — use being one which can be exercised in 

Where Commission leased airport to two common with other persons desiring to use 

individuals, subsequent application of an- the airport and is a right to which all are 

other to use the airport for purpose of en- entitled equally. Atty. Gen. Op., No. 524, 

gaging in cotton dusting activities could dated Sept. 19, 1956. 
not be denied in view of this section, such 

§ 2-117. How purchase price raised. 

As to petition of freeholders for bond 
election, see Evatte v. Cass, 217 S. C. 62, 
59 S. E. 2d 638 (1950). 

§ 2-118. Finances. 

The establishment of a municipal airport the power of taxation to such purpose. 
Is for a "public purpose" within the mean- Evatte v. Cass, 217 S. C. 62, 59 S. E. 2d 
ing of constitutional provisions restricting 638 (1950). 

§ 2-119. Local police regulations. 

Enforcement limited to facilities needed part for purposes other than an airport, city 
in operation of airport. — Where city of police powers would extend only to run- 
Florence acquired former Army air base, ways, buildings and facilities needed in 
and leased substantial part thereof to Aero- connection with operation of airport. Atty. 
nautics Commission and leased remaining Gen. Op. July 8, 1957. 



31 



2-151 



Code of Laws of South Carolina 



§ 2-152 



CHAPTER 3.1. 
Airlines. 



Sec. 

2-151. 



Certificate required to operate intra- 
state airline service having posted 
flights. 



Sec. 

2-1S2. 



Commission issue regulations to 
govern operations. 



§ 2-151. Certificate required to operate intrastate airline service having posted 
flights. 

Any person desiring to operate an intrastate scheduled airline service wherein a 
schedule of flights is to be posted or otherwise publicized or maintained shall apply 
to the South Carolina Aeronautics Commission for a certificate to allow him to 
operate such service. Before any certificate shall be issued by the Commission the 
schedule of flights to be made by such service and the equipment to be used by it 
must be approved by the Commission. Scheduled flights approved by the Commis- 
sion must be commenced within ninety days after issuance of the certificate. 

1957 (50) 358. 

§ 2-152. Commission issue regulations to govern operations. 

The Commission shall promulgate such rules and regulations as are necessary to 
govern the operation of any and all intrastate scheduled airline operations. 
1957 (50) 358. 

CHAPTER 4. 



Particular Airports. 



Article 1.1. 
The Clemson Agricultural College of 
South Carolina. 
Sec. 
2-207. Powers. 

Article 1.7. 
Greenville-Spartanburg Airport District. 
2-209. Created. 

2-209.1. Commission exercise duties and 
powers; appointment; term; va- 
cancy. 
Officers; expenses. 
Duties and powers of commission. 
Use of operation revenues un- 
pledged. 
Rates not subject to State regu- 
lation. 
2-209.6. Income and property exempt from 

taxes. 
2-209.7. Property taxes to be equalized be- 
tween counties. 
2-209.8. Certain provisions and powers not 
to be diminished; part of obliga- 
tions. 
Invalidity. 

Article 3. 
Anderson County. 
2-221. Appointment of airport commission. 
2-222. Terms and removal of members. 



Sec. 



Article 9. 
Fairfield County. 



State 
n de- 
prop- 



2-209.2. 
2-209.3. 
2-209.4. 

2-209.5. 



2-209.9. 



2-302. Acquisition of air strip site. 
2-304. Commission cooperate with 
Aeronautics Commission 
termining site, etc.; lease ,. 
erty adjoining runway for private 
hangars. 

Article 11. 
Greenwood County. 
2-321. Greenwood airport commission. 
2-322. Terms. 

Article 18. 
Marlboro County. 
Duties and powers of board of 
county highway commissioners 
for Marlboro County, 
to 2-394. [Repealed.] 
Article 21. 
Sumter County. 
Sumter Airport Commission. 
Article 21.3. 
Union County Airport Commission. 
2-427. Created; duties and powers; airport. 
Article 22. 
Whitmire City. 
2-431 to 2-434. [Repealed.] 



2-390. 



2-391 



2-425. 



32 



§ 2-207 1960 Cumulative Supplement § 2-209 

Article 1.1. 
The Clemson Agricultural College of South Carolina. 
§ 2-207. Powers. 

The board of trustees of The Clemson Agricultural College of South Carolina 
may 

(1) Plan, acquire, own, control, develop, maintain and operate a public airport 
in accordance with the requirements of the Federal Airport Act and the regulations 
prescribed thereunder; 

(2) Develop, maintain and operate such public airport out of any appropria- 
tions provided by the State or other funds, public or private, made available for 
such purposes ; 

(3) Enter into agreements with the State for the purpose of receiving State 
funds available for public airport purposes, and accept, receive, receipt for, disburse 
and expend such State funds for the purposes provided by this section. Such funds 
shall be accepted and expended upon such terms and conditions as may be pre- 
scribed by the State ; 

(4) Enter into grant agreements with the United States for the purpose of re- 
ceiving Federal grant-in-aid funds for public airport purposes, accept, receive, re- 
ceipt for, disburse and expend such funds made available by grant, to accomplish 
in whole or in part any of the public airport purposes provided for by the Federal 
Airport Act and the regulations thereunder. All Federal funds shall be accepted and 
expended upon such terms and conditions as may be prescribed by the United 
States or any agency or department thereof ; 

(5) Designate the South Carolina Aeronautics Commission as its agent, to ac- 
cept, receive, receipt for and disburse Federal or State funds or other funds, public 
or private, made available for the purposes of this section, as may be required or 
authorized by law; 

(6) Acquire property, real and personal, or any interest therein, by gift, purchase, 
condemnation, devise, lease, or otherwise, as may be required in the developmnt 
and operation of a public airport. Condemnation proceedings, if any, shall be con- 
ducted in accordance with the procedures provided for by the State Authorities 
Eminent Domain Act; 

(7) Adopt regulations, establish charges, fees and tolls for the use of such air- 
port and exercise such powers as may be necessary to achieve compliance with its 
regulations and enforce payment of its charges, fees and tolls ; and 

(8) Enter into long-term contracts, leases and other agreements relative to the 
development, operation and manageemnt of the airport. Such contracts, leases and 
agreements shall be in compliance with the requirements of the Federal Airport Act 
and the regulations prescribed thereunder and in accordance with the laws and 
regulations governing the making of contracts, leases or agreements by or on behalf 
of the State. 

1958 (SO) 1913. 

Article 1.7. 

Greenville-Spartanburg Airport District. 
§ 2-209. Created. 

The territory embraced by Greenville and Spartanburg Counties is hereby con- 
stituted an airport district and political subdivision of this State, the functions of 
which shall be public and governmental, and the inhabitants thereof are hereby 
constituted a body politic and corporate. The corporate name of the airport district 
shall be Greenville-Spartanburg airport district, and by that name the airport dis- 
trict may sue and be sued. 

1959 (51) 101. 

33 



§ 2-209.1 Code of Laws of South Carolina § 2-209.3 

§ 2-209.1. Commission exercise duties and powers; appointment; term; va- 
cancy. 

The corporate powers and duties of the Greenville-Spartanburg airport district 
shall be exercised and performed by the Greenville-Spartanburg airport commission, 
which shall be composed of six members to be appointed by the Governor, three 
of whom shall be residents of Greenville County and recommended by a majority 
of the members of the Greenville County legislative delegation, and the other three 
shall be residents of Spartanburg County and recommended by a majority of the 
Spartanburg County legislative delegation. Six members having been originally 
appointed, two for a term of two years, two for a term of four years and two for 
a term of six years, thereafter members shall be appointed to serve for terms of 
six years and until their successors are appointed and qualified. The term of each 
member shall expire on January first nearest to the end of the term of years for 
which he is appointed. Upon election by a majority of either delegation, its secre- 
tary or acting secretary shall certify the person elected to the Governor, who shall 
commission him for the term herein provided. Successors shall be appointed to 
serve for the unexpired term of members who die or resign in like manner and 
upon like recommendation as provided for regular appointment. 

1959 (51) 101. 

§ 2-209.2. Officers; expenses. 

The commission shall appoint one of its members as chairman and one of its 
members, or any other competent person, as secretary. The chairman shall serve for 
a term of two years and until his successor is appointed and qualified. The members 
of the commission shall serve without compensation, except for their actual expenses 
while in performance of duties prescribed under this article. 

1959 (51) 101. 

§ 2-209.3. Duties and powers of commission. 

The commission is hereby committed the function of planning, establishing, de- 
veloping, constructing, enlarging, improving, maintaining, equipping, operating, 
regulating, protecting and policing an airport and air navigation facility to serve 
the people of the district and the public generally. To this end, the commission may : 

( 1 ) Have perpetual succession. 

(2) Adopt, use and alter a corporate seal. 

(3) Make bylaws for the management and regulation of its affairs, and define a 
quorum for its meetings. 

(4) Deposit monies derived from the sale of any bonds authorized to be issued 
under the provisions of this article or from revenue-producing facilities in any bank 
or trust company having an office within the district and withdraw the same for the 
purpose of operating, maintaining, constructing, improving and extending any fa- 
cility in its charge. 

(5) Plan, establish, develop, construct, enlarge, improve, maintain, equip, operate, 
regulate, protect and police its airport and air navigation facility under such reason- 
able rules and regulations as it may from time to time promulgate. 

(6) Maintain and extend runways, terminals, maintenance shops, access roads, 
utilities systems, concessions, accommodations and other facilities of whatever nature 
or kind for the comfort and accommodation of air travelers ; purchase and sell 
supplies, goods and commodities as an incident to the operation of its airport facili- 
ties ; and for all such purposes it may by purchase, gift, devise, lease, eminent 
domain proceedings or otherwise acquire, hold, develop, use, lease, mortgage, sell, 
transfer and dispose of any property, real or personal, or any interest therein, in- 
cluding easements in airport hazards, or land outside the boundaries of its airport 

34 



§ 2-209.3 1960 Cumulative Supplement § 2-209.3 

or airport site, necessary to permit the removal, elimination, obstruction-marking 
or obstruction-lighting, of airport hazards, or to prevent the establishment of airport 
hazards. 

(7) License, lease, rent, sell or otherwise provide for the use of any of its air- 
port facilities, including the privilege of supplying goods, commodities, things, serv- 
ices or facilities at such airport by any persons or corporations, qualified to use 
the same as its discretion may dictate ; but in no case shall the public be deprived 
of its rightful, equal and uniform use of the airport, air navigation facility, or portion 
or facility thereof. 

(8) Place in effect and, from time to time, revise such schedules of licenses, 
rates and charges for the use of its facilities as may be necessary or desirable to 
the orderly operation of the airport facility of the district ; but all such rates and 
charges shall be reasonable and nondiscriminatory. 

(9) Exercise the power of eminent domain for any corporate function. The power 
of eminent domain may be exercised through any procedure prescribed by §§ 25-161 
to 25-171. All powers conferred on municipalities under said provisions are con- 
ferred on the commission. 

(10) Appoint officers, agents, employees and servants and prescribe the duties 
of such, including the right to appoint persons charged with the duty of enforcing 
the rules and regulations of the commission as provided for in item (5) above, fix 
their compensation and determine if and to what extent they shall be bonded for 
the faithful performance of their duties. 

(11) Employ engineers, architects and attorneys and contract for such other 
services of a technical or professional nature as may be necessary or desirable to 
the performance of its duties. 

(12) Make contracts for the construction, erection, maintenance and repair of 
the facilities in its charge, by competitive bidding if such contracts are in excess of 
ten thousand dollars. If the contracts are less than ten thousand dollars then it may 
make such contracts without competitive bids. 

(13) Apply for, accept, receive, receipt for, disburse and expend Federal, State, 
county or municipal moneys and other moneys, public or private, made available by 
grant or loan or both, to accomplish, in whole or in part, any of the purposes of 
this article and. to this end, to continue to prosecute any application filed with the 
Federal Civil Aeronautics Administration or the Federal Airway Authority, or any 
other Federal agency, by joint action of the Spartanburg County and Greenville 
County legislative delegations and to pay from the funds of the district any costs 
incurred for any services rendered, since the date the application was filed, in con- 
nection with the procuring or processing of the application which are found by 
the commission to legitimately inure to the benefit of the district. All Federal 
moneys accepted under this section shall be accepted and expended by the commis- 
sion upon such terms and conditions as are prescribed by the United States and as 
are consistent with State law ; and all other moneys accepted under this section 
shall be accepted and expended by the commission upon such terms and conditions 
as are prescribed by the State or other sources thereof. 

(14) The commission may, on behalf of the district, borrow money and make 
and issue negotiable bonds, notes and other evidences of indebtedness payable 
solely from the revenue derived from the operation of any revenue-producing 
facility or facilities in its charge. The sums borrowed may be those needed to pay 
costs incident to the operation and maintenance of its airport facility or such sums 
as may be needed to pay the cost of any extension, addition or improvement to 
its airport facility, or both. If the method of financing authorized by this item is 
used, neither the faith and credit of this State nor of any county lying within the 

35 



§ 2-209.4 Code of Laws of South Carolina § 2-209.4 

district nor of the district itself shall be pledged to the payment of the principal 
and interest of the obligations, and there shall be on the face of such obligation a 
statement, plainly worded, to that effect. Neither the members of the commission 
nor any person signing the obligations shall be personally liable thereon. A con- 
venient procedure for borrowing money pursuant to this item may be prescribed, 
the district shall be fully empowered to avail itself of all powers granted by Title 
59, chapter 5, notwithstanding the fact that it shall not otherwise be deemed to be 
a municipality. In exercising the powers conferred upon it by said chapter, the dis- 
trict may make all pledges and covenants authorized by any provision thereof, and 
may confer upon the holders of its securities all rights and liens authorized thereby. 
Specifically, and notwithstanding contrary provisions in said chapter, the district 
may: 

(a) Provide that such bonds, notes or other evidences of indebtedness be pay- 
able, both as to principal and interest, from the net revenues derived from the 
operation of any revenue-producing facility or facilities, as such net revenues may be 
defined by the commission. 

(b) Covenant and agree that upon its being adjudged in default as to the pay- 
ment of any instalment of principal and interest upon any obligation issued by it 
or in default as to the performance of any covenant or undertaking made by it, that 
in such event the principal of all obligations of such issue may be declared forthwith 
due and payable, notwithstanding that any of them may not have then matured. 

(c) Confer upon a corporate trustee the power to make disposition of the pro- 
ceeds from all borrowings and also all revenues derived from the operation of the 
revenue-producing facility whose revenues are pledged for the payment of such 
obligations, in accordance with and in the order of priority prescribed by resolu- 
tions adopted by the commission as an incident to the issuance of any notes, bonds 
or other evidences of indebtedness. 

(d) Dispose of its obligations at public or private sale and upon such terms and 
conditions as it shall approve. 

(e) Make such provision for the redemption of any obligations issued by it 
prior to their stated maturity, with or without a premium, and on such terms and 
conditions as the commission shall approve. 

(f) Covenant and agree that any cushion fund established to further secure the 
payment of principal and interest of any obligation shall be in a fixed amount. 

(g) Covenant and agree that it will not enter into any agreements with any 
person or with the government of this State, the United States, or any of the 
political subdivisions of the same, for the furnishing of free services when such 
services are ordinarily charged for. 

(h) Prescribe the procedure, if any, by which the terms of the contract with the 
holders of its obligations may be amended, the number of obligations whose holders 
must consent thereto, and the manner in which such consent shall be given. 

(i) Prescribe the evidences of default and conditions upon which all or any 
obligation shall become or may be declared due before maturity and the terms and 
conditions upon which such declaration and its consequences may be waived. 

(15) Do all other acts and things necessary or convenient to carry out any 
function or power committed or granted to the district. 

1959 (51) 101. 

§ 2-209.4. Use of operation revenues unpledged. 

All revenues derived by the commission from the operation of any revenue- 
producing facility which may not be required to discharge covenants made by it in 
issuing bonds, notes or other obligations authorized by item (14) of § 2-209.3 shall 

36 



§ 2-209.5 1960 Cumulative Supplement § 2-302 

be held, disposed of or expended by it for purposes germane to the functions of 
the district. 
1959 (51) 101. 

§ 2-209.5. Rates not subject to State regulation. 

The rates charged for services furnished by any revenue-producing facility of the 
district as construed, improved, enlarged or extended shall not be subject to super- 
vision or regulation of any State bureau, commission, board or other like instru- 
mentality or agency thereof. 

1959 (51) 101. 

§ 2-209.6. Income and property exempt from taxes. 

Property and income of the district shall be exempt from all taxes levied by the 
State, county or any municipality, division, sub-division or agency thereof, direct or 
indirect. 

1959 (51) 101. 

§ 2-209.7. Property taxes to be equalized between counties. 

During each year in which an ad valorem tax is levied on the property within the 
district, the commission shall determine the total amount realized from such tax and 
notify the treasurer of the county paying to the Comptroller General less than that 
turned over to the Comptroller General by the other county. Thereupon such treas- 
urer shall, from the general funds of his county, pay to the treasurer of the other 
county, to be placed in the general funds, such amount as shall be necessary to 
equalize the amount contributed by each county. In making such adjustment in any 
year, Spartanburg County shall be entitled to a credit of ten thousand dollars due 
to the loss of taxes on lands used in the airport facility. 

1959 (51) 134. 

§ 2-209.8. Certain provisions and powers not to be diminished; part of obli- 
gations. 

So long as the district shall be indebted to any person on any bonds, notes or 
other obligations issued pursuant to the authority of this article, provisions of this 
article except § 2-207.7 and the powers granted to the district and the commission 
shall not be in any way diminished and said provisions shall be deemed a part of 
the contract between the district and the holders of such obligations. 

1959 (51) 101. 

§ 2-209.9. Invalidity. 

If any part of this article shall be held unconstitutional, such unconstitutionality 
shall not affect the remainder thereof. 
1959 (51) 101. 

Article 3. 
Anderson County. 
§ 2-221. Appointment of airport commission. 
Amended by A. & J. R. 1957 (50) 84, 529. 

§ 2-222. Terms and removal of members. 
Amended by A. & J. R. 1957 (50) 84. 

Article 9. 
Fairfield County. 
§ 2-302. Acquisition of air strip site. 
Amended by A. & J. R. 1955 (49) 688. 

37 



§ 2-304 Code of Laws of South Carolina § 2-434 

§ 2-304. Commission cooperate with State Aeronautics Commission in de- 
termining site, etc.; lease property adjoining runway for private 
hangars. 
Amended by A. & J. R. 1955 (49) 688. 

Article 11. 
Greenwood County. 
§ 2-321. Greenwood airport commission. 
Amended by A. & J. R. 1957 (50) 107. 

§ 2-322. Terms. 

Amended by A. & J. R. 1957 (50) 107. 

Article 18. 
Marlboro County. 

§ 2-390. Duties and powers of board of county highway commissioners for 
Marlboro County. 
Provisions of § 1 of A. & J. R. 1953 (48) 1116 make up thi9 section. 

§§ 2-391 to 2-394. Marlboro County Airport Board. 
Repealed by A. & J. R. 1953 (48) 1116. 

Article 21. 
Sumter County. 
§ 2-425. Sumter Airport Commission. 

Provisions of A. & J. R. 1959 (51) 282 make up this section. 

Article 21.3. 
Union County Airport Commission. 
§ 2-427. Created ; duties and powers ; airport. 

Provisions of A. & J. R. 1958 (50) 1868 make up this section. 

Article 22. 
Whitmire City. 
§§ 2-431 to 2-434. Whitmire Airport Commission; annual statement. 
Repealed by A. & J. R. 1960 (51 ) 2031. 



38 



5 3-1 1960 Cumulative Supplement § 3-6.2 

Title 3. 
Agriculture. 

Chap. 1. General Provisions, §§ 3-1 to 3-30. 

2. State Crop Pest Commission; Insecticides and Fungicides, §§ 3-162 
to 3-170. 

2.1. South Carolina Economic Poison Law, §§ 3-187 to 3-187.81. 

3. Marketing of Agricultural Products, §§ 3-248 to 3-322. 

4. Seeds; Plants; and Seed and Plant Certification, §§ 3-448 to 3-448.1. 

5. Fertilizers, §§ 3-501 to 3-586. 

5.1. South Carolina Fertilizer Law of 1954, §§ 3-590 to 3-590.116. 

6. Commercial Feeding Stuffs, §§ 3-602 to 3-641.2. 

CHAPTER 1. 

General Provisions. 

Article 1. Sec. 

Department and Commissioner of 3-6-3. Appeal; Commissioner make return. 

Agriculture. 3-6.4. Same; posting of bond to stay revo- 
Sec. cation. 

3-1. Duties of Department. . . , . ^ A / tic1 ^ Z ' 

3-3 1 Bond Agricultural Duties of Clemson College. 

3-6.1. Commissioner may revoke for cause 3-22. [Repealed.] 

registrations and licenses. 3-30. Clemson to receive and use grants 
3-6.2. Notice and hearing required; proce- under act. 

dural powers of Commissioner. 

Article 1. 
Department and Commissioner oj Agriculture. 
§ 3-1. Duties of Department. 

The Department of Agriculture shall execute the laws of this State pertaining to 
agriculture except such laws as are specifically designated for execution by others. 

1942 Code § 3223; 1932 Code § 3223; Civ. C. '22 § 929; Civ. C. '12 § 851; 1904 (24) 
449; 1909 (26) 14. 191; 1936 (39) 1615: 1941 (42) 119: 1960 (51) 1610. 

Effect of amendment. — Prior to the 1960 
amendment the Department was generally 
charged with execution of work of a bureau 
of agriculture and a bureau of publicity. 

§ 3-3.1. Bond. 

The bond of the Commissioner shall be in the sum of fifty thousand dollars and 
his liability thereon shall not extend to losses incurred in bonded warehouses 
except in case of tort or neglect of duty on his part. 
1954 (48) 1566. 
_ Reduction of bond effective as of be- 
ginning of fiscal year beginning July 1, 
1954. Atty. Gen. Op., June 25, 1954. 

§ 3-6.1. Commissioner may revoke for cause registrations and licenses. 

The Commissioner of Agriculture may revoke for cause, either permanently or 
for a definite period of time, any registration or license issued by him. 
1957 (50) 56. 

§ 3-6.2. Notice and hearing required; procedural powers of Commissioner. 

No such registration or license, however, shall be revoked until the person con- 
cerned shall have been notified and a public hearing accorded him. At such hearing 

39 



§ 3-6.3 Code of Laws of South Carolina § 3-30 

all persons concerned shall be accorded the right of counsel and the right to intro- 
duce evidence in their behalf. The Commissioner may at any such hearing or other 
proceeding authorized by this section administer oaths ; take testimony ; issue 
subpoenas and compel the attendance of witnesses, which shall be served in the 
same manner as subpoenas issued by the court of common pleas ; and order the 
taking of depositions in the same manner as depositions are taken in said court. 
1957 (50) 56. 

§ 3-6.3. Appeal ; Commissioner make return. 

Any order, decision or other official act which revokes the registration or license 
issued by the Commissioner may be appealed by any person concerned to the circuit 
court of Richland County or the circuit court of the county of residence of the 
person whose license has been thusly adversely affected. Such appeal may be effected 
by serving the Commissioner or someone of discretion at his office within sixty 
days after receipt of written notice of the order, decision or official act affecting the 
registration or license of the person concerned. The notice of appeal shall state the 
grounds upon which it is founded. The Commissioner within thirty days after serv- 
ice of the notice of appeal shall make a return to the circuit court, giving copies of 
all documents and orders and a transcript of the testimony taken. 

1957 (50) 56. 

§ 3-6.4. Same ; posting of bond to stay revocation. 

Pending final adjudication no such registration or license shall be revoked if the 
person concerned shall furnish bond satisfactory to the Commissioner in the amount 
of two hundred dollars. 

1957 (50) 56. 

§ 3-21. Duties and powers in general. 

Cross reference. — As to possession, sale, 
etc., of live virulent unaltered hog cholera 
virus, see § 6-408.1. 

Article 2. 

Agricultural Duties of Clemson College. 
§ 3-22. Cooperation of coast section farmers. 
Repealed by A. & J. R. 1960 (51) 1613. 

§ 3-30. Clemson to receive and use grants under act. 

The board of trustees of The Clemson Agricultural College of South Carolina 
may receive such grants and use them for the benefit of the State in accordance 
with the terms and conditions expressed in the act of Congress referred to in 
§ 3-29 ; provided, that the grants for the more complete endowment and support 
of land-grant colleges shall be equally divided between The Clemson Agricultural 
College of South Carolina and South Carolina State College as now provided by 
law. 

1942 Code § 5806-2; 1936 (39) 1448; 1954 (48) 1722. 

Effect of amendment. — The amendment College of South Carolina to South Caro- 
changed the name of the Colored, Normal, lina State College. 
Industrial, Agricultural and Mechanical 



40 



§ 3-162 



1960 Cumulative Supplement 



§ 3-170 



CHAPTER 2. 

State Crop Pest Commission; Insecticides and Fungicides. 

Article 4. 
Insecticides and Fungicides. 
Sec. 

3-162 to 3-166. [Repealed.] 
3-169 and 3-170. [Repealed.] 

Article 4. 

Insecticides and Fungicides* 

§§ 3-162 to 3-166. Arsenical or other preparations for boll weevil control 
must comply with specifications ; powers of commission. 

Repealed A. & J. R. 1954 (48) 1401. 
Cross reference. — See now §§ 3-187 et seq. 

§§ 3-169 and 3-170. Penalties for violating other sections; damages. 
Repealed A. & J. R. 1954 (48) 1401. 
Cross reference. — See now §§ 3-187 et seq. 



CHAPTER 2.1. 
South Carolina Economic Poison Law. 



3-187.2. 
3-187.3. 
3-187.4. 



Article 1. 
General Provisions. 
Sec. 

3-187. Short Title. 
3-187.1. Definitions. 

Medicinal or toilet preparations 

exempted. 
Commission may delegate author- 
ity to its employees. 
Commission may cooperate with 
public agencies. 

187.5. Designation of pests; toxicity to 
man and coloring of economic 
poisons. 

187.6. Submission of complete formula. 

187.7. Changes in labeling of formula not 
to lower efficacy of product. 

Rules and regulations; names in 

ingredient statements. 
Collection and examination of 
samples of economic poisons and 
devices; sales by pest control or 
custom operators; reports. 
Chemical analyses; collectors of 

samples. 
Distribution, sale or transporta- 
tion of certain economic poisons 
unlawful. 
3-187.12. Sale of economic poisons for ex- 
perimental purposes. 
Alteration, etc., of labels or 
change of substance in economic 
poisons unlawful. 
Revelation of information rela- 
tive to formulas. 
3-187.15. Interference with the commission. 
3-187.16. Refusal of commission access to 
business records unlawful. 



-187.8. 
-187.9. 

-187.10. 
-187.11. 



3-187.13. 



3-187.14. 



Sec. 

3-187.17. Guarantees or undertaking re- 
quired by § 3-187.77. 

3-187.18. Invalidity. 

Article 2. 
Registrations. 

3-187.41. Registration required for distri- 
bution, sale or transportation. 

3-187.42. Products registered under Fed- 
eral Insecticide, Fungicide, and 
Rodenticide Act. 

3-187.43. Shipments from one plant to an- 
other operated by same person. 

3-187.44. When commission shall register 
article. 

3-187.45. Statement registrant must file. 

3-187.46. Same; renewal. 

3-187.47. Registration of brands and 
grades; inspection fee. 

3-187.48. No registration charge after pay- 
ment of annual fees aggregating 
$100.00. 

3-187.49. Registration of several products 
as single economic poison. 

3-187.50. Change in labeling or formula 
during registration period. 

3-187.51. Expiration of registration. 

3-187.52. Renewal of certificates. 

3-187.53. Refusal of registration for non- 
compliance with chapter; notify 
registrant. 

3-187.54. Refusal or revocation of registra- 
tion for fraud and deceit; hear- 
ing required. 

Article 3. 
Enforcement, Penalties, etc. 

3-187.71. Recovery of damages against 
seller. 



* See §§ 3-187 et seq. for South Carolina Economic Poison Law. 

41 



§ 3-187 Code of Laws of South Carolina § 3-187.1 

Sec. Sec. 

3-187.72. Service of process generally on 3-187.78. Each sale violation a separate 

foreign corporation or non- offense. 

resident. 3-187.79. Notice to violators; hearing; pros- 
3-187.73. Consent to service of process and editions. 

jurisdiction by sellers. 3-187.80. Issuance of "stop sale, use or re- 
3-187.74. Interest of enforcement official. moval" orders; appeal; release. 

3-187.75. Minor infractions. 3-187.81. Commission may seize noncon- 
3-187.76. Penalties. forming products; disposition. 

3-187.77. Same; exceptions as to § 3-187.11. 

Article 1. 

General Provisions. 
§ 3-187. Short title. 

This chapter shall be known as the South Carolina Economic Poison Law. 
1954 (48) 1401. 

§ 3-187.1. Definitions. 

For the purpose of this chapter — 

(1) The term "economic poison" means any substance or mixture of substances 
intended for preventing, destroying, repelling or mitigating any insects, rodents, 
nematodes, fungi, bacteria, weeds, shrubs or other forms of plant or animal life 
or viruses (except viruses on or in living man or other animals) which the South 
Carolina State Crop Pest Commission shall declare to be a pest except household 
disinfectants which are subject to existing law. 

(2) The term "device" means any instrument or contrivance intended for 
trapping, destroying, repelling or mitigating insects, nematodes or rodents or 
destroying, repelling or mitigating fungi, bacteria, weeds, shrubs or such other 
pests as may be designated by the Commission but not including simple mechanical 
devices such as rat traps. 

(3) The term "insecticide" means any substance or mixture of substances in- 
tended for preventing, destroying, repelling or mitigating any insects which may 
be present in any environment whatsoever. 

(4) The term "fungicide" means any substance or mixture of substances in- 
tended for preventing, destroying, repelling or mitigating any fungus, pathogen or 
agency that may cause plant disease. 

(5) The term "nematocide" means any substance intended for preventing, 
destroying, repelling, or mitigating nematodes, other worms or any other inverte- 
brates which are destructive, constitute a liability and may be classified as pests. 

(6) The term "rodenticide" means any substance or mixture of substances in- 
tended for preventing, destroying, repelling, or mitigating rodents or any other 
vertebrate animal which the Commission shall declare to be a pest. 

(7) The term "herbicide" means any substance or mixture of substances in- 
tended for preventing, destroying, repelling or mitigating any weed or shrub. 

(8) The term "insect" means any of the numerous small invertebrate animals 
generally having the body more or less obviously segmented, for the most part 
belonging to the class Insecta, comprising six-legged, usually winged forms, as, 
for example, beetles, bugs, bees and flies, and to other allied classes of arthropods 
whose members are wingless and usually have more than six legs, as, for example, 
spiders, mites, ticks, centipedes and wood lice. 

(9) The term "fungi" means all non-chlorophyll-bearing thallophytes (that is, 
all non-chlorophyll-bearing plants of a lower order than mosses and liverworts) as, 
for example, rusts, smuts, mildews, molds, yeasts, bacteria, and viruses except 
those on or in living man or other animals. 

42 



§ 3-187.1 1960 Cumulative Supplement § 3-187.1 

(10) The term "weed" means any plant which grows where not wanted. 

(11) The term "ingredient statement" or "guaranteed analysis statement" 
means (a) a statement of the name and percentage by weight of each active in- 
gredient, together with the total percentage by weight of the inert ingredients, in 
the economic poison or (b) a statement of the name of each active ingredient, 
together with the name of each and total percentage of the inert ingredients, if 
any there be, in the economic poison (except option (a) shall apply if the prepara- 
tion is highly toxic to man, determined as provided in § 3-187.5; and in addition, 
in case the economic poison contains arsenic in any form, a statement of the 
percentages of total and water soluble arsenic, each stated as elemental (metallic) 
arsenic. 

(12) The term "active ingredient" means an ingredient which will prevent, 
destroy, repel or mitigate insects, fungi, nematodes, rodents, weeds and other 
pests. 

(13) The term "inert ingredient" means an ingredient which is not an active 
ingredient. 

(14) The term "antidote" means the most practical immediate treatment in 
case of poisoning and includes first aid treatment. 

(15) The term "person" means any individual, partnership, association, cor- 
poration or an organized group of persons whether incorporated or not. 

(16) The term "South Carolina State Crop Pest Commission" or "Commission" 
means those members of the board of trustees of The Clemson College of South 
Carolina who are authorized by the Legislature to constitute the State Crop Pest 
Commission. 

(17) The term "registrant" means the person registering any economic poison 
pursuant to the provisions of this chapter. 

(18) The term "label" means the written, printed or graphic matter on, or 
attached to, the economic poison or device, or the immediate container thereof, and 
the outside container or wrapper of the retail package, if any there be, of the 
economic poison or devices. 

(19) The term "labeling" means all labels and other written, printed or graphic 
matter : 

(a) Upon the economic poison, device or any of its containers or wrappers; 

(b) Accompanying the economic poison or device at any time ; 

(c) To which reference is made on the label or in literature accompanying the 
economic poison or device, except when accurate and non-misleading reference 
is made to current official publications of the State Experiment Station, The 
Clemson Agricultural College of South Carolina, the South Carolina State Crop 
Pest Commission or similar official agencies of this State or other states when 
such agencies are authorized by law to conduct research in the field of economic 
poisons. 

(20) The term "adulterated" shall apply to any economic poison if its strength 
or purity falls below the professed standard or quality as expressed on its labeling 
or under which it is sold, or if any substance has been substituted wholly or in part 
for the article, or if any valuable constituent of the article has been wholly, or in 
part, abstracted. 

(21) The term "misbrand" shall apply: 

(a) To any economic poison or device if 

(i) Its labeling bears any statement, design or graphic representa- 
tion relative thereto or to its ingredients which is false or mis- 
leading in any particular ; 
(ii) It is an imitation of or is offered for sale under the name of 
another economic poison ; 

43 Volume 1 



§ 3-187.2 Code of Laws of South Carolina § 3-187.4 

(iii) Its labeling bears any reference to registration under this 
chapter ; 

(iv) The labeling accompanying it does not contain directions for 
use which are necessary, and, if complied with, adequate for 
the protection of the public; 

(v) The label does not contain a warning or caution statement 
which may be necessary and, if complied with, adequate to 
prevent injury to living man and other vertebrate animals, 
vegetation, and useful invertebrate animals ; 

(vi) The label does not bear an ingredient statement or guaranteed 
analysis statement on that part of the immediate container and 
on the outside container or wrapper, if there be one, through 
which the ingredient statement or guaranteed analysis state- 
ment on the immediate container cannot be clearly read, of the 
retail package which is presented or displayed under customary 
conditions of purchase ; 

(vii) Any word, statement or other information required by or 
under the authority of this chapter to appear on the labeling 
is not prominently placed thereon with such conspicuousness, 
as compared with other words, statements, designs or graphic 
matter in the labeling, and in such terms as to render it likely 
to be read and understood by the ordinary individual under 
customary conditions of purchase and use ; or 
(viii) In the case of insecticide, fungicide, nematocide, rodenticide or 
herbicide, when used as directed or in accordance with com- 
monly recognized safe practice, it shall be injurious to living 
man, other vertebrate animals, vegetation, to which it is applied, 
or to the person applying such economic poison, excepting pests 
and weeds. 
1954 (48) 1401. 

§ 3-187.2. Medicinal or toilet preparations exempted. 

This chapter shall not apply to any preparation, drug or chemical intended to 
be used or sold solely for medicinal use or for toilet purposes. 
1954 (48) 1401. 

§ 3-187.3. Commission may delegate authority to its employees. 

All authority vested in the South Carolina State Crop Pest Commission by 
virtue of the provisions of this chapter may with like force and effect be executed 
by such employees of the Commission as it may designate for such purpose. 

1954 (48) 1401. 

§ 3-187.4. Commission may cooperate with public agencies. 

In order to avoid confusion endangering the public health, resulting from 
diverse requirements, particularly as to the labeling and coloring of economic 
poisons, and to avoid increased costs to the people of this State due to the necessity 
of complying with such diverse requirements in the manufacture and sale of such 
poisons, the Commission may cooperate with, and enter into agreements with any 
other agency of this State, the United States Department of Agriculture and any 
other state or agency thereof for the purpose of carrying out the provisions of 
this chapter and securing uniformity of regulation. 

1954 (48) 1401. 

44 



§ 3-187.5 1960 Cumulative Supplement § 3-187.11 

§ 3-187.5. Designation of pests; toxicity to man and coloring of economic 
poisons. 
The Commission may, after opportunity for a hearing, 

(1) Declare as a pest any form of plant or animal life or virus which is injurious 
to plants, man, domestic animals, articles, or substances ; 

(2) Determine whether economic poisons are to be considered as highly toxic 
to man ; and 

(3) Determine standards of coloring or discoloring for economic poisons. 
1954 (48) 1401. 

§ 3-187.6. Submission of complete formula. 

The Commission, whenever it deems it necessary in the administration of this 
chapter, may require the submission of the complete formula of any economic poison. 

1954 (48) 1401. 

§ 3-187.7. Changes in labeling or formula not to lower efficacy of product. 

Changes in labeling or formula at no time are permissible if they lower the 
efficacy of the product. 

1954 (48) 1401. 

§ 3-187.8. Rules and regulations; names in ingredient statements. 

The Commission may make rules and regulations for carrying out the provisions 
of this chapter, including the collection and examination of samples of economic 
poisons and devices subject to this chapter and the determination and establishment 
of suitable names to be used in the ingredient statement. 

1954 (48) 1401. 

§ 3-187.9. Collection and examination of samples of economic poisons and 
devices; sales by pest control or custom operators; reports. 
The Commission may also 

(1) Effect the collection and examination of samples of economic poisons and 
devices to determine compliance with the requirements of this chapter ; 

(2) At all reasonable hours enter into any car, warehouse, store, building, boat, 
vessel or place supposed to contain economic poisons or devices for the purpose of 
inspecting, sampling and procuring samples for analysis or examination from any 
lot, package or parcel of economic poison or any device ; 

(3) Make regulations governing the sale of insecticides, fungicides, nematocides. 
rodenticides and herbicides through the medium of "pest control operators" oi 
"custom operators" who for a stated fee agree to apply a chemical or a mixture of 
chemicals for the control of specified pests ; 

(4) Publish from time to time, in such forms as it may deem proper, complete 
information concerning the sale of economic poisons, together with such data on 
their production and use as it may consider advisable, and reports of the results nf 
the analyses based on official samples of economic poisons sold within this State 

1954 ('48) 1401. 

§ 3-187.10. Chemical analyses ; collectors of samples. 

The fertilizer inspection and analysis department of The Clemsnn Agricultural 
College of South Carolina shall make all chemical analyses on samples collected, 
using their inspectors for the collection of official samples. 

1954 (48) 1401. 

§ 3-187.11. Distribution, sale or transportation of certain economic poisons 
unlawful. 

It shall be unlawful for any person to distribute, sell or offer for sale within this 
State or deliver for transportation or transport in intrastate commerce or between 
points within this State through any point outside this State any of the following : 

45 



§ 3-187.12 Code of Laws of South Carouna § 3-187.16 

(1) Any economic poison (a) which is not registered pursuant to the provisions 
of §§ 3-187.41 to 3-187.54 (b) if any of the claims made for it or any of the 
directions for its use differ in substance from the representations made in connec- 
tion with its registration or (c) if its composition differs from its composition as 
represented in connection with its registration. 

(2) Any economic poison unless it is in the registrant's or the manufacturer's 
unbroken immediate container and there is affixed to such container, and to the 
outside container or wrapper of the retail package, if there be one, through which 
the required information on the immediate container cannot be clearly read, a label 
bearing (a) the name and address of the manufacturer, registrant, or person for 
whom manufactured; (b) the name, brand, or trade mark under which said article 
is sold; and (c) the net weight or measure of the content subject, however, to 
such reasonable variations as the Commission may permit. 

(3) Any economic poison which contains any substance or substances in 
quantities highly toxic to man, determined as provided in § 3-187.5, unless the label 
shall bear, in addition to any other matter required by this chapter; (a) the skull 
and crossbones; (b) the word "poison" prominently in red on a background of 
distinctly contrasting color; and (c) a statement of an antidote for the economic 
poisoning. 

(4) Any economic poison which is adulterated or misbranded, or any device 
which is misbranded. 

1954 (48) 1401. 

§ 3-187.12. Sale of economic poisons for experimental purposes. 

If a written permit has been obtained from the Commission, economic poisons 
may be sold for experimental purposes subject to such restrictions and conditions 
as may be set forth in the permit. 

1954 (48) 1401. 

§ 3-187.13. Alteration, etc., of labels or change of substance in economic 
poisons unlawful. 

It shall be unlawful for any person to detach, alter, deface, or destroy, in whole 
or in part, any label or labeling provided for in this chapter or the rules and regu- 
lations promulgated hereunder, or to add any substance to, or take any substance 
from an economic poison in a manner that may defeat the purpose of this chapter. 

1954 (48) 1401. 

§ 3-187.14. Revelation of information relative to formulas. 

It shall be unlawful for any person to use for his own advantage or to reveal 
any information relative to formulas of products acquired by authority of §§ 
3-187.6 and 3-187.41 to 3-187.54 other than to the Commission, its officials or em- 
ployees, officials or employees of the United States Department of Agriculture or 
other Federal agencies, the courts in response to a subpoena, physicians and in 
emergencies to pharmacists and other qualified persons for use in the preparation of 
antidotes in accordance with such directions as the Commission may prescribe. 

1954 (48) 1401. 

§ 3-187.15. Interference with the Commission. 

It shall be unlawful for any person to oppose or interfere in any way with the 
Commission or its duly authorized agents in carrying out the duties imposed by 
this chapter. 

1954 (48) 1401. 

§ 3-187.16. Refusal of Commission access to business records unlawful. 

It shall be unlawful for any manufacturer, distributor, dealer, carrier or other 
person to refuse, upon a request in writing specifying the nature or kind of economic 

46 



§ 3-187.17 1960 Cumulative Supplement § 3-187.45 

poison or device to which such request relates, to furnish to or permit any person 
designated by the Commission to have access to and to copy such records of 
business transactions as may he essential in carrying out the purposes of this 
chapter. 

1954 (48) 1401. 

§ 3-187.17. Guarantees or undertaking required by § 3-187.77. 

It shall be unlawful for any person to give a guaranty or undertaking provided 
for in § 3-187.77 which is false in any particular, except that a person who receives 
and relies upon a guaranty authorized under said section may give a guaranty to 
the same effect, which guaranty shall contain in addition to his own name and 
address the name and address of the person residing in the United States from 
whom he received the guaranty or undertaking. 

1954 (48) 1401. 

§ 3-187.18. Invalidity. 

If any provision of this chapter is declared unconstitutional or invalid, the entire 
chapter shall become invalid and unconstitutional. 

1954 (48) 1401. 

Article 2. 
Registration. 
§ 3-187.41. Registration required for distribution, sale or transportation. 

Every economic poison which is distributed, sold or offered for sale within this 
State or delivered for transportation or transported in intrastate commerce or 
between points within this State through any point outside this State shall be 
registered with the Commission. 

1954 (48) 1401. 

§ 3-187.42. Products registered under Federal Insecticide, Fungicide, and 
Rodenticide Act. 

The Commission may register and permit the sale of any such economic poison 
which has been duly registered without protest under the provisions of the Federal 
Insecticide, Fungicide, and Rodenticide Act but products so registered shall be 
subject to inspection and to all provisions of this chapter. 

1954 (48) 1401. 

§ 3-187.43. Shipments from one plant to another operated by same person. 

Notwithstanding any other provisions of this chapter, registration is not re- 
quired in the case of an economic poison shipped from one plant within this State to 
another plant within this State operated by the same person. 

1954 (48) 1401. 

§ 3-187.44. When Commission shall register article. 

If it appears to the Commission that the composition of the article is such as to 
warrant the proposed claims for it and if the article, its labeling and other material 
required to be submitted comply with the requirements of this chapter, he shall 
register the article. 

1954 (48) 1401. 

§ 3-187.45. Statement registrant must file. 

The registrant shall file with the Commission, a statement including: 

(1) The name and address of the registrant and the name and address of the 
person whose name will appear on the label, if other than the registrant; 

(2) The name of the economic poison; 

47 



§ 3-187.46 Code of Laws of South Carolina § 3-187.52 

(3) A complete copy of the labeling accompanying the economic poison and a 
statement of all claims made and to be made for it including directions for use; and 

(4) If requested by the Commission a full description of the tests made and the 
results thereof upon which the claims are based. 

1954 (48) 1401. 

§ 3-187.46. Same; renewal. 

In the case of renewal of registration a statement shall be required only with 
respect to information which is different from that furnished when the ecouoini* 
poison was registered or last registered. 

1954 (48) 1401. 

§ 3-187.47. Registration of brands and grades ; inspection fee. 

The registrant, before selling or offering for sale any economic poison in this 
State, shall register each brand or grade of such economic poison with the South 
Carolina State Crop Pest Commission, Clemson, South Carolina, by filing with the 
Commission a copy of the label of each brand or grade of such economic poison. 
For the purposes of defraying expenses connected with the enforcement of this 
chapter, the registrant shall pay to the Commission an annual inspection fee of 
five dollars for each brand and grade to be offered for sale in this State. The Com- 
mission shall transmit funds so collected to the State Treasurer who shall deposit 
same in the general funds of the State. 

1954 (48) 1401. 

§ 3-187.48. No registration charge after payment of annual fees aggregating 
$100.00. 

Any registrant may register annually any number of brands after the payment 
of annual fees aggregating one hundred dollars, whereupon there shall be issued 
to the registrant by the Commission a certificate entitling the registrant to sell all 
duly registered brands in this State until the expiration of the certificate. 

1954 (48) 1401. 

§ 3-187.49. Registration of several products as single economic poison. 

Products which have the same formula, and are manufactured by the same 
person, the labeling of which contains the same claims, and the labels of which bear 
a designation identifying the product as the same economic poison may be registered 
as a single economic poison. Additional names and labels shall be added by supple- 
mental statements during the current period of registration. 

1954 (48) 1401. 

§ 3-187.50. Change in labeling or formula during registration period. 

Within the discretion of the Commission, or its authorized representative, a 
change in the labeling or formulas of an economic poison may be made within the 
current period of registration without requiring a registration of the product. 

1954 (48) 1401. 

§ 3-187.51. Expiration of registration. 

All registration of products shall expire on the thirty-first day of December, 
following date of issuance, unless such registration shall be renewed annually, in 
which event the expiration date shall be extended for each year, renewal registration 
or until otherwise terminated. 

1954 (48) 1401. 

§ 3-187.52. Renewal of certificates. 

All certificates are subject to renewal upon receipt of annual inspection fees. 
1954 (48) 1401. 

48 



§ 3-187.53 1960 Cumulative Supplement § 3-187.75 

§ 3-187.53. Refusal of registration for noncompliance with chapter; notify 

registrant. 

If it does not appear to the Commission that the article is such as to warrant the 
proposed claims for it or if the article, its labeling and other material required 
to be submitted do not comply with the provisions of this chapter, the Commission 
shall notify the registrant of the manner in which the article, labeling or other 
material required to be submitted fail to comply with this chapter so as to afford the 
registrant an opportunity to make the necessary corrections. 

1954 (48) 1401. 

§ 3-187.54. Refusal or revocation of registration for fraud and deceit ; hearing 
required. 

The Commission may refuse to register or may cancel the registration of any 
brand of economic poison as herein provided upon satisfactory proof that the 
registrant has been guilty of fraudulent and deceptive practices in the evasions or 
attempted evasions of the provisions of this chapter or any rules and regulations 
promulgated hereunder. No registration shall be revoked or refused until the 
registrant shall have been given a hearing by the Commission. 

1954 (48) 1401. 

Article 3. 
Enforcement, Penalties, etc. 
§ 3-187.71. Recovery of damages against seller. 

The provisions as to the penalties in this chapter are in addition to the rights of 
the injured party to recover in a court of competent jurisdiction any damages 
sustained by reason of a violation of the provisions of this chapter or the rules 
and regulations of the Commission by any seller of the materials covered in this 
chapter, and his damages shall be determined by a jury. 

1954 (48) 1401. 

§ 3-187.72. Service of process generally on foreign corporation or nonresident. 

For the purpose of service of process, the Commissioner of Agriculture shall be 
the agent of any foreign corporation or nonresident coming within the operation 
of this chapter. 

1954 (48) 1401. 

§ 3-187.73. Consent to service of process and jurisdiction by sellers. 

Any person or corporation, either domestic or foreign, who shall sell the eco- 
nomic poisons or insecticides regulated by this chapter within this State shall sign 
and file with the Commissioner of Agriculture a written statement designating the 
Commissioner as his or its agent upon whom process may be served in the event 
of litigation and shall agree that the court of common pleas in any county in the 
State where the economic poisons or insecticides are used shall have jurisdiction to 
try and determine the cause of action. 

1954 (48) 1401. 

§ 3-187.74. Interest of enforcement official. 

It shall be unlawful for any person charged with the enforcement of this chapter 
to be directly or indirectly connected with or financially interested in the sale, 
manufacture or distribution for sale of any economic poison. 

1954 (48) 1401. 

§ 3-187.75. Minor infractions. 

Nothing in this chapter shall be construed as requiring the Commission to report 
for the institution of proceedings thereunder minor violations thereof whenever the 

49 



§ 3-187.76 Code of Laws of South Carolina § 3-187.79 

Commission believes that the public interest will be adequately served in the 
circumstances by a suitable written notice or warning. 
1954 (48) 1401. 

§ 3-187.76. Penalties. 

Any person violating the provisions of this chapter or the rules and regulations 
of the Commission promulgated to carry the purposes of this chapter into effect 
shall be guilty of a misdemeanor and shall be punished by a fine of not more than 
one hundred dollars, or imprisoned for not more than thirty days, or both, at the 
discretion of any court having jurisdiction. 

1954 (48) 1401. 

§ 3-187.77. Same ; exceptions as to § 3-187.11. 

The penalties provided for violations of § 3-187.11 shall not apply to 

(1) Any carrier while lawfully engaged in transporting an economic poison with- 
in this State, if such carrier shall, upon request, permit the Commission or its 
designated agent to copy all records showing the transactions in and movements 
of the article ; 

(2) Public officials of this State and the Federal Government engaged in the 
performance of their official duties ; 

(3) The manufacturer or shipper of an economic poison for experimental use 
only 

(a) By or under the supervision of an agency of this State or of the Federal Gov- 
ernment authorized by law to conduct research in the field of economic poisons; or 

(b) By others if the economic poison is not sold and if the container thereof is 
plainly and conspicuously marked "For Experimental Use Only — Not To Be Sold", 
together with the manufacturer's name and address ; 

(4) Any person who establishes a guaranty signed by, and containing the name 
and address of, the registrant or person residing in the United States from whom 
he purchased and received in good faith the article in the same unbroken package, 
to the effect that the article was lawfully registered at the time of sale and delivery to 
him, and that it complies with the other requirements of this chapter. In such 
case the guarantor shall be subject to the penalties which would otherwise attach 
to the person holding the guaranty under the provisions of this chapter. 

1954 (48) 1401. 

§ 3-187.78. Each sale violation a separate offense. 

Each sale or offer for sale in violation of the terms of this chapter or rules and 
regulations of the Commission shall be deemed and taken a separate and distinct 
offense and shall be punishable as such. 

1954 (48) 1401. 

§ 3-187.79. Notice to violators; hearing; prosecntions. 

If it shall appear from the examination or evidence that any of the provisions 
of this chapter or the rules and regulations issued hereunder have been violated, 
the Commission may cause notice of such violations to be given to the registrant, 
distributor and possessor from whom said sample or evidence was taken. Any 
party so notified shall be given an opportunity to be heard under such rules and 
regulations as may be prescribed by the Commission. If it appears after such 
hearing that there has been a sufficient number of violations of this chapter or the 
rules and regulations issued hereunder, then the Commission may certify the facts 
to the proper prosecuting attorney and furnish that officer with a copy of the re- 
sults of the examination of such sample duly authenticated by the analyst or other 
officer making the examination under the oath of such analyst or officer. 

1954 (48) 1401. 

50 



§ 3-187.80 1960 Cumulative Supplement § 3-208 

§ 3-187.80. Issuance of "stop sale, use or removal" orders; appeal; release. 

The Commission shall issue and enforce a written or printed "Stop Sale, Use 
or Removal" order to the owner or custodian of any lot of economic poison and 
hold at a designated place when it finds such economic poison is being offered or 
exposed for sale in violation of any of the provisions of this chapter until the law 
has been complied with and such economic poison is released in writing by the 
Commission or such violation has been otherwise legally disposed of by written 
authority. The owner or custodian of such economic poison may appeal from such 
order to a court of competent jurisdiction in the county or city where such eco- 
nomic poison is found praying for a judgment as to the justification of such order, 
for the discharge of such economic poison from the order and prohibiting the sale 
in accordance with the findings of the court. The Commission shall release the eco- 
nomic poison so withdrawn when the requirements of the provisions of this chapter 
have been complied with and upon payment of all costs and expenses incurred in 
connection with the withdrawal. The provisions ot this section shall not be con- 
strued as limiting the right of the enforcement officer to proceed as authorized by 
other provisions of this chapter. 

1954 (48) 1401. 

§ 3-187.81. Commission may seize nonconforming products; disposition. 

Any lot of economic poison not in compliance with the provisions of this chapter 
shall be subject to seizure on complaint of the Commission to a court of competent 
jurisdiction in the area in which such economic poison is located. In the event the 
court finds such economic poison to be in violation of this chapter and orders the con- 
demnation of such economic poison, it shall be disposed of in any manner con- 
sistent with the quality of the economic poison and the laws of the State. In no 
instance shall the disposition of such economic poison be ordered by the court with- 
out first giving the claimant an opportunity to apply to the court for its release or 
for permission to process or relabel it so as to bring it in compliance with this 
chapter. 

1954 (48) 1401. 

CHAPTER 3. 

Marketing of Agricultural Products. 

Article 4. Article 8. 

Promotion of Export Trade in Flue-Cured Greenville County Marketing 

Tobacco. Commission. 

Sec. Sec. 

3-248. Provision for such referendum. 3-286.1. Construction of grain elevator or 

3-249.2. Question in referendum. processing plant and issue of 

3-249.4. Effect of two-thirds in favor of bonds therefor. 

assessment. 3-286.2. Use sewer line of Greater Green- 
Article 6.1. ville Sewer Commission. 
Darlington County Farmers Marketing Article 8.1. 

Commission. Horry County Marketing 

3-266.21. Farmers Marketing Commission. Commission. 

Article 7. 3-299. Horry County Marketing Commls- 

Florence City-County Agricultural sion. 

Commission. Article 13. 

3-267. Establishment. Spartanburg County Farmer's Market 

3-322. Governing board; personnel; terms; 
appointment. 

Article 1. 
State Agricultural Marketing Commission Generally. 

§ 3-208. Commission's duties and powers; rules and regulations. 

Rules and regulations promulgated under Regulations, Agricultural Marketing Com- 
authority of this section, see Rules and mission, State, in Volume 7. 

51 



§ 3-248 Code of Laws of South Carolina § 3-266.21 

Article 4. 
Promotion oj Export Trade in Flue-Cured Tobacco. 
§ 3-248. Provision for such referendum. 

In the manner in this article set forth and under rules and regulations as estab- 
lished under the provisions of this article there shall be held in every county in the 
State in which flue-cured tobacco is produced a referendum to be participated in by 
all farmers engaged in the production of flue-cured tobacco who have tobacco 
marketing cards issued in their names by the Farm Production and Marketing 
Administration or its successors. In such referendum such individuals so eligible 
for participation shall vote upon the question of whether or not there shall be levied 
an annual assessment for a period of three years in an amount not to exceed forty 
cents per acre on all tobacco acreage, the exact amount per acre to be determined by 
the members of the board of directors of Tobacco Associates, Incorporated, sub- 
ject to the approval of the majority of the South Carolina members of such board 
of directors. 

1947 (45) 732; 19S1 (47) 197; 1959 (51) 65. 

Effect of amendment. — The 1959 amend- forty cents and provided for determining 
ment changed the annual assessment per the exact per acre amount, 
acre rate from ten cents to not exceeding 

§ 3-249.2. Question in referendum. 

Any such referendum shall be upon the question of whether or not the farmers 
eligible for participation therein and voting therein shall vote upon themselves, for 
the period of three years, an assessment not to exceed forty cents per acre on all 
tobacco acreage in the State for the purpose of providing farmer participation in 
the fund and through the agency established for the stimulation, expansion and 
development of export markets for flue-cured tobacco, the exact amount per acre of 
the assessment to be determined by the members of the board of directors of Tobacco 
Associates, Incorporated, subject to the approval of the majority of the South 
Carolina members of such board of directors. 

1947 (45) 732; 1951 (47) 197; 1959 (51) 65. 

Effect of amendment. — The 1959 amend- forty cents and provided for determining 
ment changed the annual assessment per the exact per acre amount. 
acre rate from ten cents to not exceeding 

§ 3-249.4. Effect of two-thirds in favor of assessment. 

If in any such referendum two-thirds or more of the tobacco farmers voting 
thereon shall vote in the affirmative and in favor of the levying or collection of such 
assessment not to exceed forty cents per acre on all tobacco acreage in the State, 
the exact amount per acre to be determined by the members of the board of directors 
of Tobacco Associates, Incorporated, subject to the approval of the majority of the 
South Carolina members of such board of directors, such assessment shall be col- 
lected in the manner provided in this article. 

1947 (45) 732; 1959 (51) 65. 

Effect of amendment. — The 1959 amend- forty cents and provided for determining 
ment changed the annual assessment per the exact per acre amount, 
acre rate from ten cents to not exceeding 

Article 6.1. 
Darlington County Farmers Marketing Commission. 
§ 3-266.21. Fanners Marketing Commission. 

Provisions of §§ 3 to 7 and § 11 of A. & J. R. 1953 (48) 132 make up this 
section. 

52 



§ 3-267 1960 Cumulative Supplement § 3-322 

Article 7. 
Florence City-County Agricultural Commission. 
§ 3-267. Establishment. 

There is hereby established a Commission to be known as the "Florence City- 
County Agricultural Commission." It shall be composed of six members, who 
shall be selected as follows: one by the county legislative delegation, one by the 
city council of the city of Florence, one by the Florence Chamber of Commerce, 
one by the district agent of Clemson College Extension Service, one by the dis- 
trict supervisor of agricultural education and the other, the sixth member, by the 
five members selected as provided above. With the exception of the initial terms 
the terms of office shall be for a period of three years from July 1 1950; but 
the terms of the initial members shall be from the dates of their respective ap- 
pointments and for a regular term from July 1 1950. Their successors shall be 
selected as provided for the original appointments and any vacancy occurring from 
any cause shall be filled in the manner provided above for filling the office in which 
the vacancy has occurred. All members shall serve until their successors shall have 
been appointed and qualified. They shall serve without compensation. 

1950 (46) 1874; 1952 (47) 1718. 

Effect of amendment. — The amendment one appointed by the district supervisor of 
increased the number of members from agricultural education, 
five to six, the member added being the 

Article 8. 

Greenville County Marketing Commission. 

§ 3-286.1. Construction of grain elevator or processing plant and issue of 
bonds therefor. 
Provisions from A. & J. R. 1952 (47) 2164 make up this section. 

§ 3-286.2. Use sewer line of Greater Greenville Sewer Commission. 
Provisions of A. & J. R. 1957 (50) 42 make up this section. 

Article 8.1. 
Horry County Marketing Commission. 
§ 3-299. Horry County Marketing Commission. 

Provisions of A. & J. R. 1952 (47) 2154 as amended by A. & J. R. 1954 (48) 
1525, 1537 and A. & J. R. 1956 (49) 2089 make up this section. 

Article 13. 
Spartanburg County Farmer's Market. 
§ 3-322. Governing board ; personnel ; terms ; appointment. 
Amended by A. & J. R. 1957 (50) 129. 

CHAPTER 4. 
Seeds ; Plants ; and Seed and Plant Certification. 

Article 5.1. Sec. 

Noxious Plants and Weeds. 3-448.1. Seize and confiscate unlawful im- 

Sec. portations; penalties. 

3-448. Commissioner to determine noxious 
plants and weeds; publish. 

53 



§ 3-402 Code of Laws of South Carolina § 3-586 

Article 1. 
In General. 

§ 3-402. Enforcement ; rules and regulations. 

Rules and regulations promulgated under Regulations, Agriculture Commissioner, in 
authority of this section, see Rules and Volume 7. 

§ 3-404. License to handle seeds; tax. 

Cross reference. — As to revocation of li- 
cense by Commissioner of Agriculture "for 
cause," see §§ 3-6.1 et seq. 

Article 5.1. 
Noxious Plants and Weeds. 
§ 3-448. Commissioner to determine noxious plants and weeds; publish. 

The Commissioner of Agriculture shall determine what are noxious plants and 
weeds and shall publish such determination in suitable rules and regulations which 
shall be duly promulgated in accordance with law. 
1956 (49) 2972. 

Rules and regulations promulgated under Regulations, Agriculture, Commissioner of, 
authority of this section, see Rules and in Volume 7. 

§ 3-448.1. Seize and confiscate unlawful importations; penalties. 

Any such plants or weeds unlawfully imported into the State may be seized and 
confiscated, and in addition thereto any person found guilty of importing noxious 
plants or weeds into the State in violation of the terms of § 3-448 or any rule or 
regulation duly promulgated by the Commissioner shall be fined not more than 
one hundred dollars or sentenced to not more than thirty days confinement. 

1956 (49) 2972. 

CHAPTER 5. 

Fertilizers. 

Sec. Sec. 

3-501 to 3-544. [Repealed.] 3-547 to 3-586. [Repealed.] 

§§ 3-501 to 3-544. "Commercial fertilizers" defined; filler. 
Repealed by A. & J. R. 1954 (48) 1509. 
Cross reference. — See now §§ 3-590 et seq. 

§§ 3-547 to 3-586. Water; penalty for certain violation of chapter. 
Repealed by A. & J. R. 1954 (48) 1509. 
Cross reference. — See now §§ 3-590 et seq. 

CHAPTER 5.1. 

South Carolina Fertilizer Law op 1954. 

Article 1. Article 2. 

General Provisions. Registration of Fertilizer, etc. 

Sec. Sec. 

3-590. Citation of chapter. 3-590.21. Registration and guarantee of 

3-590.1. Definitions. grades required prior to sale; 

3-590.2. Fertilizer Board of Control. expiration date. 

3-5 Q 0.3. Rules and regulations. 3-590.22. Submission of application; fee. 

3-590.4. Exchange between registrants. 3-590.23. Information application contain. 

3-590.5. When commercial fertilizer mis- 3-590.24. Same; phosphoric acid in certain 

branded. cases. 

3-590.6. Distribution of misbranded com- 3-590.25. When registration and sale may 

mercial fertilizer unlawful. be prohibited. 

3-590.7. Misdemeanor to violate. 3-590.26. Exclusive use of brand name or 

3-590.8. Invalidity. trade-mark. 

54 



8 3-590 



1960 Cumulative Supplement 



3-590.1 



Sec. Sec. 

3-590.27. Revocation or refusal of registra- 3-S90.84. 
tion for fraud. 3-590.85. 

Article 3. 
Labels, Tags, etc. 3-590.86. 

3-590.31. Information required on contain- 3-590.87. 
ers. 3-590.88. 

3-590.32. Printing on package. 
3-590.33. Statement accompany bulk ship- 
ment. 
3-590.34. Contract specifications to be com- 3-590.101. 
plied with; actual analysis 
shown on bag and guaranteed. 3-590.102. 

Article 4. 
Required Standards. 3-590.103. 

3-590.51. Minimum plant nutrient content. 3-590.104. 
3-590.52. Nitrate of soda, sulphate of am- 3-590.105. 
monia and superphosphate 3-590.106. 

3-590.53. Specialty fertilizer. 

3-590.54. Filler. 3-590.107. 

3-590.55. Wet or bad mechanical condition. 
3-590.56. Bulk sales. 3-590.108. 

Article 5. 3-590.109. 

Analyses and Inspections. 
3-590.71. Analyses of fertilizer; inspectors; 3-590.110. 
chemists; reports. 3-590.111. 

3-590.72. Entry of premises and inspection; 

sampling. 
3-590.73. Analysis of fertilizer for purchas- 3-590.112. 
ers own use. 

Article 6. 3-590.113. 

Inspection Tax. 
3-590.81. Tax per ton of commercial fer- 3-590.114 

tilizer sold. 
3-590.82. Tax on packages containing ten 3-590.115. 

pounds or less. 
3-590.83. Exemptions. 3-590.116. 

Article 1. 

General Provisions. 
§ 8-590. Citation of chapter. 

This chapter shall be known as the South Carolina Fertilizer Law of 1954. 
1954 (48) 1509. 

§ 3-590.1. Definitions. 

When used in this chapter : 

(1) The term "board" means the board of trustees of The Clemson Agricultural 
College of South Carolina. 

(2) The term "fertilizer material" means any substance containing nitrogen, 
phosphoric acid, potash or any other recognized plant nutrient element or com- 
pound which is used primarily for its plant nutrient content, value in promoting 
plant growth or for compounding mixed fertilizers. Lime, limestone, marl, un- 
ground bones, stockpen manure, barnyard manure or the excrement of any do- 
mestic animal shall not be considered as a fertilizer material, in case that such 
manure or excrement has not been dried, manipulated or otherwise treated or 
is not claimed to have a value of more than eight dollars a ton. 

(3) The term "unmanipulated manure" means substances composed primarily 
of excreta, plant remains or mixtures of such substances which have not been 
processed in any manner. 

(4) The term "manipulated manures" means substances composed primarily of 
excreta, plant remains or mixtures of such substances which have been processed 

55 



Reports on sales; payment of tax. 
Reports on shipments to non- 
registrants. 
Information confidential. 
Bond and records of registrant. 
Examination of registrant's rec- 
ords. 

Article 7. 
Fines, Suits, etc. 

Penalties for plant nutrient de- 
ficiencies. 

Penalty for excessive chlorine in 
tobacco fertilizer. 

Penalty for deficiency in basicity. 

Additional plant nutrients. 

Short weight. 

Commercial values; use in as- 
sessment of penalties. 

Penalties for benefit of ultimate 
consumer. 

Distribution of fine or penalty. 

Failure of dealer to distribute 
collected penalty. 

Evidence of distribution. 

Penalty to transport, sell or re- 
ceive improperly branded or 
misbranded fertilizers. 

Actions to recover fines and pen- 
alties. 

Service of process on nonresident 
manufacturers. 

Analyze fertilizers ordered sold 
prior to sale. 

Remittance of penalties by the 
board. 

Stop sale, use or removal orders; 
release of fertilizers. 



§ 3-590.2 Code of Laws of South Carolina § 3-590.3 

in any manner, including the addition of plant foods, drying, grinding and other 
neans. 

(5) The term "mixed fertilizer" means any combination or mixture of fertilizer 
materials designed for use or claimed to have value in promoting plant growth. 

(6) The term "commercial fertilizer" includes mixed fertilizer or fertilizer ma- 
terials. 

(7) The term "specialty fertilizer" means any commercial fertilizer distributed 
primarily for use on crops grown for noncommercial purposes, such as home gar- 
dens and lawns. 

(8) The term "bulk fertilizer" means commercial fertilizer delivered to the 
purchaser in the solid or liquid state, in a non-packaged form to which a label can- 
not be attached. 

(9) The term "brand" means a term, design or trade-mark used in connection 
with one or several grades of commercial fertilizer. 

(10) The term "grade" means the minimum percentage of total nitrogen, avail- 
able phosphoric acid and soluble potash as stated in the order given in this defi- 
nition, and when applied to mixed fertilizers shall be in whole numbers only. 

(11) The term "official sample" means any sample of commercial fertilizer taken 
by the board or its authorized representative in accordance with the procedures 
prescribed by the board. 

(12) The term "farmer's sample" means a sample of commercial fertilizer drawn 
in accordance with the provisions of § 3-590.73. 

(13) The term "official analysis" means the analysis of commercial fertilizer 
made by the board or its duly authorized representative in accordance with the 
methods prescribed by the board. 

(14) The term "ton" means a net weight of two thousand pounds avoirdupois. 

(15) The term "unit" of plant nutrient means twenty pounds or one per cent 
of a ton. 

(16) The term "percent" or "percentage" means the percentage by weight. 

(17) The term "registrant", "guarantor" or "manufacturer" means the person 
registering pursuant to the provisions of this chapter. 

(18) The term "label" means the written, printed or graphic matter on or at- 
tached to the immediate container, or, in the case of bulk goods, accompanying 
transportation of the lot of the commercial fertilizer. 

(19) The term "soil amendment" shall include any and every substance or mix- 
ture of substances except those included under paragraphs (2) to (9) of this sec- 
tion imported, manufactured, prepared or sold for fertilizer, manurial, soil-enriching 
or soil-corrective purposes or intended to be used for promoting or stimulating the 
growth of plants, increasing the productivity of plants, improving the quality of 
crops, or producing any chemical or physical change in the soil. 

1954 (48) 1509. 

§ 3-590.2. Fertilizer Board of Control. 

The board may delegate the duties herein provided to the fertilizer committee ol 
the board which shall be known as the Fertilizer Board of Control. 

1954 (48) 1509. 

§ 3-590.3. Rules and regulations. 

The board may establish such rules and regulations in regard to the inspection, 
analysis, distribution and sale of commercial fertilizer, agricultural lime, and soil 
amendments as shall not be inconsistent with the provisions of this chapter and as 
in its judgment will best carry out the requirements thereof. 

1954 (48) 1509. 

Rules and Regulations promulgated un- Regulations, Clemson Agricultural College 
der authority of this section, see Rules and of South Carolina, The, in Volume 7. 

56 



§ 3-590.4 1960 Cumulative Supplement § 3-590.23 

§ 3-590.4. Exchange between registrants. 

Nothing in this chapter shall be construed to restrict or avoid sales or exchange 
of commercial fertilizers to each other by importers, registrants or manipulators who 
mix fertilizer materials for sale or as preventing the free and unrestricted ship- 
ments of commercial fertilizers to registrants or manipulators who have registered 
their brands as required by the provisions of this chapter. 

19S4 (48) 1509. 

§ 3-590.5. When commercial fertilizer misbranded. 

A commercial fertilizer is misbranded if it carries any false or misleading state- 
ment upon or attached to the container, or, if false or misleading statements con- 
cerning its agricultural value are made on the container or in any advertising mat- 
ter accompanying or associated with the commercial fertilizer. 

1954 (48) 1509. 

§ 3-590.6. Distribution of misbranded commercial fertilizer unlawful. 
It shall be unlawful to distribute a misbranded commercial fertilizer. 
1954 (48) 1509. 

§ 3-590.7. Misdemeanor to violate. 

Any person violating the fertilizer law of this State shall be guilty of a misde- 
meanor. 

1954 (48) 1509. 

§ 3-590.8. Invalidity. 

If any clause, sentence, paragraph or part of this chapter shall for any reason 
be judged invalid by any court of competent jurisdiction, such judgment shall not 
affect, impair or invalidate the remainder thereof but shall be confined in its op- 
eration to the clause, sentence, paragraph or part thereof directly involved in the 
controversy in which such judgment shall have been rendered. 
1954 (48) 1509. 

Article 2. 
Registration of Fertilisers, etc. 

§ 3-590.21. Registration and guarantee of grades required prior to sale; ex- 
piration date. 

Each registrant, before selling or offering for sale in this State, shall register and 
guarantee each grade of commercial fertilizer with the board. All registrations ex- 
pire on July first of each year. 

1954 (48) 1509. 

§ 3-590.22. Submission of application; fee. 

The application for registration shall be submitted in duplicate on forms furnished 
by the board accompanied by a registration fee of one dollar per brand or grade. 
Upon approval by the board or its duly authorized representative, one copy shall 
be returned to the applicant. 

1954 (48) 1509. 

§ 3-590.23. Information application contain. 

The application for registration, in addition to the firm name and address and 
plant locations shall include information with respect to each brand, grade, or 
analysis in the following order: 

( 1 ) Net weight 

(2) Brand name and grade 

57 



§ 3-590.24 Code of Laws of South Carolina § 3-590.24 

(3) Guaranteed analysis 

(a) In mixed fertilizers (other than those branded for tobacco) : 
i. Total nitrogen _ percent ; 

ii. (Optional) Water-insoluble nitrogen _ percent; 

iii. Percent of total in multiples of five ; 

iv. Available phosphoric acid _ percent ; 

v. Soluble potash _ percent; 

vi. (Optional) Magnesium or total magnesium oxide _ percent; and 

vii. Whether the fertilizer is acid forming or non-acid forming: The po- 
tential acidity or basicity, if claimed, shall be expressed as equiva- 
lent of calcium carbonate in multiples of five percent or one hundred 
pounds per ton only. 

(b) In mixed fertilizers branded for tobacco: 
i. Total nitrogen __ percent ; 

ii. Water-insoluble nitrogen __ percent ; 
iii. Percent of total in multiples of five ; 
iv. (Optional) Nitrogen, as nitrate, __ percent; 
v. Percent of total in multiples of five ; 
vi. Available phosphoric acid __ percent; 
vii. Soluble potash _ percent ; 
viii. Maximum chlorine content __ percent ; 
ix. Total magnesium or total magnesium oxide percent ; 
x. Whether the fertilizer is acid-forming or non-acid forming: The po 
tential acidity or basicity, if claimed, shall be expressed as cquiva 
lent of calcium carbonate in multiples of five percent, or one hun 
dred pounds per ton only. 

(c) In fertilizer materials, including manipulated manures, if claimed, 
i. Total nitrogen percent; 

ii. Available phosphoric acid — percent; 
iii. Soluble potash percent ; 
iv. Other recognized plant nutrients __ percent. 

(4) The name and address of the registrant. 

(5) Additional plant nutrient elements determinable by chemical control meth 
ods that in the opinion of the board are beneficial to crops may also lie included 
in the guarantee. All such additional guarantees, except boron, shall be on the basis 
of the chemical element or as otherwise provided. Boron, if claimed, shall be 
guaranteed in terms of boron or equivalent in borax (Na 2 B,O 7 10 H..O) and 
stated as pounds per one hundred pounds of fertilizer. The boron or borax guar- 
antee will be considered both a minimum and a maximum guarantee. When any 
such additional plant nutrients or elements are included in the guarantee they shall 
be subject to inspection and analysis in accordance with the methods and regu- 
lations prescribed by the board. 

(6) The sources from which such nitrogen, phosphoric acid, and potash and 
other plant nutrients are derived. 

1954 (48) 1509. 

§ 3-590.24. Same ; phosphoric acid in certain cases. 

In the case of bone, tankage and other organic materials in which the phos- 
phoric acid is not shown by laboratory methods to be available but eventually 
becomes available in the soil, phosphoric acid may be guaranteed as total phos- 
phoric acid. The natural unacidulated mineral phosphatic materials offered for 
sale shall lie guaranteed as to both total and available phosphoric acid. The avail- 
able phosphoric acid guarantee shall not be given less prominence on the bag or tag 

58 



§ 3-590.25 1960 Cumulative Supplement § 3-590.34 

than the total phosphoric acid. In the case of basic slag either the total or available 
phosphoric acid shall be guaranteed. 

In no case, except in the case of unacidulated mineral phosphates, shall the term 
"total phosphoric acid" and "available phosphoric acid" be used in the same state- 
ment of analysis. 

1954 (48) 1509. 

§ 3-590.25. When registration and sale may be prohibited. 

The board may prohibit the registration and sale of any fertilizer which 

(1) Has a misleading or deceptive trade-mark, commercial brand name or firm 
name, 

(2) Carries exaggerated claims or 

(3) Contains materials other than recognized plant nutrients which are injurious 
to growing plants. 

1954 (48) 1509. 

§ 3-590.26. Exclusive use of brand name or trade-mark. 

The brand name or trademark registered by a person shall not be entitled to 
registration by another. The person having first registered and used such name 
or trade-mark shall be entitled to it, even should it not be offered for current 
registration. 

1954 (48) 1509. 

§ 3-590.27. Revocation or refusal of registration for fraud. 

When it shall appear to the board that any registrant has been persistently fraud- 
ulent in his dealings the board may revoke or refuse to register such registrant. 

1954 (48) 1509. 

Article 3. 
Labels, Tags, etc. 
§ 3-590.31. Information required on containers. 

Any commercial fertilizer offered for sale or sold or distributed in this State in 
bags, barrels or other containers shall have placed on or affixed to the container 
in written or printed form the net weight and the information required by items 
1 to 5 of § 3-590.23 either: 

( 1 ) On tags affixed to the end of the package between the ears or on the sewed 
end, 

(2) Directly on the package in type that is plainly legible or 

(3) A combination of the two. 
1954 (48) 1509. 

§ 3-590.32. Printing on package. 

No printing shall appear on the package without the brand name and grade. 
1954 (48) 1509. 

§ 3-590.33. Statement accompany bulk shipment. 

If distributed in bulk, a written or printed statement of the weight and the in- 
formation required by items 1 to 5 of § 3-590.23 shall accompany delivery and be 
supplied to the purchaser. 

1954 (48) 1509. 

§ 3-590.34. Contract specifications to be complied with ; actual analysis shown 
on bag and guaranteed. 

When there is a contract or agreement between a registrant and a purchaser of 
commercial fertilizer that the fertilizer will be manufactured by the use of certain 

59 Volume 1 



§ 3-590.51 Code of Laws op South Carolina § 3-590.55 

definite sources and amounts of nitrogen, phosphoric acid and potash, the fertilizer 
must be manufactured from these materials without the substitution of other ma- 
terials and the actual analysis, including the amount (lbs. per one hundred) and 
analysis of each material in the mixture, must be shown on the tag and guaranteed 
as prescribed in § 3-590.21. Failure on the part of the registrant to comply with 
this requirement shall render the registrant liable to the purchaser for penalties 
prescribed by law and, in addition thereto, the registrant shall pay to the purchaser 
a penalty equal to one-fourth of the purchase price of such fertilizer. Such mix- 
tures must conform to the approved ratios and minimum analysis grade for each 
ratio. 

1954 (48) 1509. 

Article 4. 

Required Standards. 

§ 3-590.51. Mnimnm plant nutrient content. 

A maximum of twenty grade ratios, with a minimum analysis grade for each 
ratio for mixed fertilizer containing two or more plant nutrients approved by the 
board annually, can be registered for sale in this State. Such mixture must contain 
a minimum of twenty per cent of total nitrogen, available phosphoric acid or sol- 
uble potash ; provided that mixed fertilizers with twenty-five per cent or more of the 
nitrogen in the insoluble form shall contain a minimum of eighteen per cent of total 
nitrogen, available phosphoric acid or soluble potash. This section shall not apply to 
animal or vegetable products not mixed with other fertilizer materials. 

1954 (48) 1509. 

§ 3-590.52. Nitrate of soda, sulphate of ammonia and superphosphate. 

No nitrate of soda containing less than fifteen and one-fourth percent of nitro- 
gen, no sulfate of ammonia containing less than twenty and one-fourth percent 
of nitrogen and no superphosphate containing less than eighteen percent of avail- 
able phosphoric acid shall be registered, sold or offered for sale for fertilizer pur- 
poses within this State. 

1954 (48) 1509. 

§ 3-590.53. Specialty fertilizer. 

A registrant may be permitted to sell one, but not exceeding one, grade of spe- 
cialty fertilizer not on the current approved ratio list if such fertilizer contains 
a minimum of twenty percent of total nitrogen, available phosphoric acid or solu- 
ble potash. The board or its duly authorized representatives may at their discretion 
require a sample label, all labeling claims made or to be made, and a sample of 
the product to be submitted before approving the registration of such fertilizer. 

1954 (48) 1509. 

§ 3-590.54. Filler. 

It shall be unlawful for any person to manufacture, offer for sale or sell in this 
State any commercial fertilizer containing any substance used as a filler that is in- 
jurious to crop growth or deleterious to the soil or to use in such commercial 
fertilizer as a filler any substance that contains inert plant nutrient material or any 
other substance for the purpose or with the effect of deceiving or defrauding the 
purchaser. The board shall determine what inert material or substance is injurious 
or objectionable. 

1954 (48) 1509. 

§ 3-590.55. Wet or bad mechanical condition. 

No commercial fertilizer shall be offered for sale which contains such an amount 
of water as to render the handling or manipulation of such commercial fertilizer 

60 



§ 3-590.56 1960 Cumulative Supplement § 3-59073 

difficult or to cause the clogging of fertilizer distributors by reason of its bad me- 
chanical condition. Such wet or bad mechanical condition of any commercial fer- 
tilizer shall be carefully observed by all fertilizer inspectors at the time of drawing 
their samples and shall be reported to the board or its duly authorized representative 
who, if he confirms the opinion of the inspector, shall forbid the sale of the lot so 
inspected. 

1954 (48) 1509. 

§ 3-590.56. Bulk sales. 

Registrants may sell commercial fertilizer in bulk to persons if delivery is made 
directly from the registrant to the user without intermediate storage. 

1954 (48) 1509. 

Article 5. 
Analyses and Inspections. 
§ 3-590.71. Analyses of fertilizers; inspectors; chemists; reports. 

The board shall cause one or more analyses to be made annually of such com- 
mercial fertilizers sold or offered for sale under the provisions of this chapter, as 
may be sampled under its direction and in accordance with such regulations as it 
may adopt. For this purpose, the board or a committee thereof shall appoint or cause 
to be appointed a sufficient number of administrative personnel, inspectors and 
chemists who shall procure, analyze and otherwise experiment with samples of 
commercial fertilizers in accordance with the methods prescribed by the board or 
its duly authorized agent and who shall perform such other duties as the board 
may direct. The analyses of all officially drawn samples will be compiled annually 
and published as directed by the board. 

1954 (48) 1509. 

§ 3-590.72. Entry of premises and inspection; sampling. 

In order to carry out the provisions of this chapter, any officer or agent of the 
board or of a committee thereof authorized by the board for the purpose may at 
any hour during the day or night enter any factory, plant, car or other place is 
which any commercial fertilizer or substances designed or intended for use as a fer- 
tilizer is stored, shipped, sold, or used, and may inspect and sample the contents and 
operation thereof. It is hereby made a condition to the shipment or delivery for ship- 
ment of any fertilizer from any such factory, plant, car or truck that such inspec- 
tion and sampling be permitted by the owner or operator thereof. 

1954 (48) 1509. 

§ 3-590.73. Analysis of fertilizers for purchasers own use. 

Any citizen of this State who shall purchase for his own use and not for sale 
any commercial fertilizers shall have the right to have the same analyzed by the 
board by taking a sample of the same for analysis from not less than five unopened 
bags and from at least ten percent of such fertilizer within fifteen days from the 
date of delivery. Before taking such sample such citizen shall give the registrant 
whose name and address appear on the bag or tag at least six days' written notice, 
which shall be served personally or sent by registered mail, of his intention to 
draw such sample. If the registrant shall neglect to have a representative pres- 
ent within the time required, then such sample may be drawn in the presence 
of at least two disinterested witnesses ; one to be chosen by such purchaser and 
one by the seller, who shall certify that the sample was taken from such com- 
mercial fertilizer. The certificate with the sample shall be sealed by a third dis- 
interested party in the presence of the witnesses and directed to the College. 
If any seller, vendor or registrant of commercial fertilizer shall refuse, decline, or 
neglect to choose a witness as provided in this section, after having been notified 

61 



§ 3-590.81 Code of Laws of South Carolina § 3-590.85 

or requested six days before by such purchaser to do so, then he shall forfeit his 
right so to do and such purchaser shall select two disinterested witnesses, who shall 
select a third witness, who shall proceed to take samples as provided. All samples 
of commercial fertilizer drawn under the provisions of this section shall be subject 
to such other rules as may be prescribed by the board not inconsistent with the 
provisions of this chapter. 
1954 (48) 1509. 

Article 6. 

Inspection Tax. 

§ 3-590.81. Tax per ton of commercial fertilizer sold. 

For the purpose of carrying out the provisions of this chapter all registrants or 
guarantors who distribute or sell any commercial fertilizer in this State shall pay 
to the State Treasurer an inspection tax of twenty-five cents for each ton of 
commercial fertilizer sold. 

1954 (48) 1509. 

§ 3-590.82. Tax on packages containing ten pounds or less. 

On individual packages of commercial fertilizer containing ten pounds or less, 
there shall be paid in lieu of the annual registration fee of one dollar per brand and 
the twenty-five cents per ton inspection tax, an annual registration fee and inspec- 
tion tax of ten dollars for each brand and grade sold or distributed. When a person 
sells commercial fertilizer in packages of ten pounds or less and in packages over 
ten pounds, this annual registration and inspection tax of ten dollars shall apply 
only to that portion sold in packages of ten pounds or less, and that portion sold 
in packages over ten pounds shall be subject to the same inspection tax of twenty- 
five cents per ton as provided in § 3-590.81. 

1954 (48) 1509. 

Cross reference. — See § 3-590.22 for reg- 
istration fee. 

§ 3-590.83. Exemptions. 

Nothing in this article shall interfere with fertilizer passing through this State 
in transit nor shall it apply to the delivery of commercial fertilizer moving between 
registrants. 

1954 (48) 1509. 

§ 3-590.84. Reports on sales ; payment of tax. 

A report of tonnage shall be due and the inspection tax payable monthly on the 
fifteenth day of the following month covering tonnage of commercial fertilizer sold 
during the preceding month by the registrant or guarantor transacting, distribut- 
ing or selling to a nonregistrant. If the tonnage report is not filed and the payment 
of inspection taxes is not made within fifteen days after the date due, a collection 
fee amounting to ten percent of the amount due shall be assessed against the 
guarantor, and the amount of fees due shall constitute a debt and become the 
basis of a judgment against the guarantor. If the tonnage report is not filed and 
the inspection tax and collection fee is not made within thirty days after the date 
due, or if the report be false, fifteen days after due written notice and opportunity 
for hearing have been given, the board may cancel the registration of commercial 
fertilizer registered by the delinquent guarantor. 

1954 (48) 1509. 

§ 3-590.85. Reports on shipments to nonregistrants. 

The registrant or guarantor transacting, distributing or selling commercial fer- 
tilizer to a nonregistrant shall mail to the board or its duly authorized repre- 

62 



§ 3-590.86 1960 Cumulative Supplement § 3-590.101 

sentative within forty-eight hours, less legal holidays and Sundays, after shipment 
is made a report showing the following information : Name, county of consignee, 
amount, tons, by grade and analysis of commercial fertilizer. This report may be 
made on a special summary form provided by the board or by submitting a copy 
of the invoice. 
1954 (48) 1509. 

§ 3-590.86. Information confidential. 

Any information as to the amount of commercial fertilizer sold and business prac- 
tices of any guarantor obtained from tonnage reports or from inspection of records 
and books shall remain confidential and shall not be revealed by the board or its 
representatives to the public, persons or other guarantors. 

1954 (48) 1509. 

§ 3-590.87. Bond and records of registrant. 

In order to guarantee faithful performance, each registrant must be able to fur- 
nish a satisfactory financial statement or surety bond to the board or its authorized 
representative. The registrant must also satisfy the board or its duly authorized 
representative that he has a good bookkeeping system and keeps such records as 
may be necessary to indicate accurately the tonnage of commercial fertilizer sold. 

1954 (48) 1509. 

§ 3-590.88. Examination of registrant's records. 

The board or its authorized representative may examine the registrant's records 
and verify the tonnages of commercial fertilizer manufactured, stored, handled or 
sold. 

1954 (48) 1509. 

Article 7. 

Fines, Suits, etc. 
§ 3-590.101. Penalties for plant nutrient deficiencies. 

If the analysis shall show that any commercial fertilizer falls short of the guar- 
anteed analysis in any one ingredient, a penalty shall be assessed in accordance 
with the following provisions: 

(1) Nitrogen 

(a) Total nitrogen: A penalty of three times the commercial value of the de- 
ficiency if such deficiency is in excess of thirty one-hundredths of one percent on 
goods that are guaranteed three percent or less; thirty-five one-hundredths of one 
percent on goods that are guaranteed four percent; forty one-hundredths of one 
percent on goods that are guaranteed over four percent, up to and including eight 
percent, fifty one-hundredths of one percent on goods guaranteed over eight per- 
cent up to and including thirty percent and seventy-five one-hundredths of one 
percent on goods guaranteed over thirty percent. 

(b) Water-insoluble nitrogen: A penalty of three times the commercial value 
of the deficiency if such deficiency is in excess of ten one-hundredths of one per- 
cent on goods guaranteed up to and including fifty one-hundredths of one per- 
cent; twenty one-hundredths of one percent on goods guaranteed from fifty one- 
hundredths of one percent to one percent; thirty one-hundredths of one percent 
on goods guaranteed from one percent to two percent ; fifty one-hundredths of one 
percent on goods guaranteed above two percent and up to and including five 
percent and one percent on goods guaranteed over five percent. 

(2) Available phosphoric acid. A penalty of four times the commercial value 
of the deficiency, if such deficiency is in excess of forty one-hundredths of one 
percent on goods that are guaranteed up to and including ten percent; fifty one- 
hundredths of one percent on goods that are guaranteed over ten percent up to 

63 



§ 3-590.102 Code of Laws of South Carolina § 3-590.106 

and including twenty-five percent and seventy-five one-hundredths of one percent 
for goods guaranteed over twenty-five percent. 

(3) Soluble potash. A penalty of four times the commercial value of the de- 
ficiency, if such deficiency is in excess of thirty one-hundredths of one percent on 
goods that are guaranteed three percent; forty one-hundredths of one percent on 
goods guaranteed four percent ; fifty one-hundredths of one percent on goods guar- 
anteed over four percent up to and including eight percent; sixty one-hundredths 
of one percent on goods guaranteed over eight percent, up to and including twenty 
percent and seventy-five one-hundredths of one percent on goods guaranteed over 
twenty percent. 

1954 (48) 1509. 

§ 3-590.102. Penalty for excessive chlorine in tobacco fertilizer. 

If the chlorine content of any lot branded for tobacco shall exceed the maximum 
amount guaranteed by more than one-half of one percent, the registrant shall be 
liable for a penalty of ten percent of the value of the fertilizer for each additional 
one-half of one percent of excess or fraction thereof. All penalties assessed under 
this section shall be paid to the consumer of the lot of fertilizer represented by the 
sample analyzed. 

1954 (48) 1509. 

§ 3-590.103. Penalty for deficiency in basicity. 

Should the basicity as equivalent of calcium carbonate of any sample of fer- 
tilizer be found upon analysis to differ more than five percent, or one hundred 
pounds of calcium carbonate equivalent per ton, from the guarantee, a penalty of 
fifty cents per ton for each fifty pounds of calcium carbonate or fraction thereof, 
in excess of the one hundred pounds allowed, shall be assessed and paid as out- 
lined in §§ 3-590.101 to 3-590.110. 

1954 (48) 1509. 

§ 3-590.104. Additional plant nutrients. 

Tolerances and penalties for any additional plant nutrients or elements or com- 
pounds not included in §§ 3-590.101 to 3-590.103 shall be prescribed by the board. 
But in no case shall the penalties exceed the selling price of the fertilizer. 

1954 (48) 1509. 

§ 3-590.105. Short weight. 

If any commercial fertilizer in the possession of the consumer is found by the 
board to be short in weight, the registrant of such commercial fertilizer shall with- 
in thirty days after official notice from the board or its duly authorized representa- 
tive pay to the consumer a penalty equal to four times the value of the actual short- 
age. Underweight commercial fertilizer stored or offered for sale, other than in 
the possession of the consumer, shall be deemed misbranded. 

1954 (48) 1509. 

Cross reference. — See § 3-590.5 for defi- 
nition of misbranded commercial fertilizer. 

§ 3-590.106. Commercial values; use in assessment of penalties. 

For the purposes of determining the commercial values to be applied under the 
provisions of this chapter, the board shall determine and publish annually the 
relative commercial values per unit of nitrogen, phosphoric acid and potash in 
commercial fertilizers in this State. The values so determined and published shall 
be used in assessing penalties. 

1954 (48) 1509. 

64 



§ 3-590.107 1960 Cumulative Supplement § 3-590.111 

§ 3-590.107. Penalties for benefit of ultimate consumer. 

All penalties imposed under §§ 3-590.101 to 3-590.104 for deficiencies in guaran- 
teed analysis of any commercial fertilizer shall be entirely for the benefit of the 
ultimate consumer of such commercial fertilizer and no such penalty or part thereof, 
except as authorized in § 3-590.108, shall accrue to any dealer in commercial 
fertilizer. 

1954 (48) 1509. 

§ 3-590.108. Distribution of fine or penalty. 

Upon the assessment of a fine or penalty by the board, a committee thereof, or 
by judgment in any action at law as herein provided, the net total of such fine 
or judgment shall be paid over to the dealer who sold or offered for sale such 
deficient commercial fertilizer. Such dealer shall within thirty days thereafter 
distribute pro rata ninety per cent of such penalty, fine or judgment to the con- 
sumer to whom such goods as shall have been found deficient were sold. The 
dealer may retain ten per cent of such penalty, fine or judgment for his services. 
But nothing herein contained shall relieve any registrant, manipulator, or mixer 
who shall have sold his goods direct to the consumer from paying over to such 
consumer the full amount of any fine, penalty or judgment which may have been 
imposed or found on account of any deficiency in guaranteed analysis, and when 
after due search and diligence, not over thirty days after the analysis is reported, 
it is found to be impossible for the dealer to furnish the names, addresses and 
amounts purchased by each of the consumers of any deficient goods, thereby 
making it impossible to refund the amount due to such consumers, the dealer shall 
pay the total refund to the State Treasurer by sending it to the board or its 
duly authorized representative, Clemson, South Carolina, the proceeds to be 
credited to the account of the Clemson College fertilizer fund. 

1954 (48) 1509. 

§ 3-590.109. Failure of dealer to distribute collected penalty. 

Any dealer who receives such fines, penalties or judgment and who shall refuse 
or neglect to accept and distribute such penalties or judgment shall be guilty of a 
misdemeanor, and upon conviction thereof, shall be fined not more than one 
hundred dollars or imprisoned not exceeding thirty days, or both, in the discretion 
of any court of competent jurisdiction. 

1954 (48) 1509. 

§ 3-590.110. Evidence of distribution. 

As evidence of the distribution of such penalty, fine or judgment to the ultimate 
consumer such dealer shall furnish receipt or other evidence of such distribution to 
the board or its duly authorized representative. 

1954 (48) 1509. 

§ 3-590.111. Penalty to transport, sell or receive improperly branded or miB- 
branded fertilizers. 

Every person who shall sell, offer for sale or transport in this State any commer- 
cial fertilizer without being properly branded or having attached thereto such labels 
and tags as required by law or any misbranded fertilizer, or receive any such 
fertilizer may be required to forfeit to the State a sum not to exceed the selling 
price of each separate package sold, offered for sale or received, to be recovered 
by suit brought in the name of the State in any court of competent jurisdiction. Such 
forfeitures, when collected, shall be paid to the State Treasurer, who shall hold 
the same subject to the order of the board. 

1954 (48) 1509. 

Cross reference. — See § 3-590.5 for 
definition of "misbranded commercial fer- 
tilizer." 

65 



§ 3-590.112 Code of Laws op South Carolina § 3-590.116 

§ 3-590.112. Actions to recover fines and penalties. 

The State may maintain an action in any court of competent jurisdiction against 
the vendor or owner of any commercial fertilizer sold, offered or exposed for sale in 
this State or shipped or transported within or into the State in violation of law 
to recover the fines and penalties due for the illegal sale, shipment or transportation 
thereof regardless of the domicile or place of residence of such owner or vendor and 
shall have a lien upon such commercial fertilizer, as well as upon any other com- 
mercial fertilizers, to be found within the State belonging to the offending party 
or parties, to secure the payment of such fines or penalties and costs and expense 
of such action. Such lien shall be enforced by attachment of such commercial fer- 
tilizer under a writ of attachment to be issued in accordance with the practice pre- 
scribed in §§ 10-901 to 10-956, except that no security as required of other 
plaintiffs by § 10-908 need be given by the State in such action. 

19S4 (48) 1509. 

§ 3-590.113. Service of process on nonresident manufacturers. 

Any seller of commercial fertilizers manufactured outside this State shall be 
taken and deemed to be an agent of the manufacturer of such fertilizers for the 
purpose of the service of process and of such papers as may be necessary in the 
commencement of any action or suit in any court of competent jurisdiction au- 
thorized by this chapter. 

1954 (48) 1509. 

§ 3-590.114. Analyze fertilizers ordered sold prior to sale. 

If there be judgment in favor of the State, as plaintiff, in such action and the 
commercial fertilizers shall be ordered sold under execution to satisfy such judg- 
ment, an inspector shall, under direction of the board, prior to the sale, draw 
proper samples from such commercial fertilizer, and cause the same to be analyzed 
by the College, and shall affix to the package thereof a statement of the result of 
such analysis on each package as required by this chapter, so that the purchaser at 
the sheriff's or constable's sale may purchase such commercial fertilizer under a 
full guaranteed analysis as provided by law. 

1954 (48) 1509. 

§ 3-590.115. Remittance of penalties by the board. 

The board may remit, in whole or in part, upon payment of the expenses incident 
to an investigation, any penalty herein provided for except the penalties provided 
for the deficiency in analysis, when the offending person is able to show that his 
violation of this chapter was beyond his reasonable ability to prevent. Such remis- 
sion of penalty by the board shall be on such condition as to it may seem equitable 
and fair. 

1954 (48) 1509. 

§ 3-590.116. Stop sale, use or removal orders; release of fertilizers. 

The board or its authorized representative may issue and enforce a written or 
printed "Stop Sale, Use or Removal Order" to the owner or custodian of any 
lot of commercial fertilizer and hold at a designated place when the board or its 
authorized representative finds such commercial fertilizer is being offered or exposed 
for sale in violation of any of the provisions of this chapter until the law has been 
complied with and such commercial fertilizer is released in writing by the board or 
its duly authorized representative, or such violation has been otherwise legally 
disposed of by written authority. The board or its duly authorized representative 
shall release the commercial fertilizer so withdrawn when the requirements of the 
provisions of this chapter have been complied with and all costs, expenses, and 
penalties incurred in connection therewith have been guaranteed or paid by the 
registrant. 

1954 (48) 1509. 

66 



§ 3-602 1960 Cumulative Supplement § 3-613 

CHAPTER 6. 

Commercial Feeding Stuffs. 

Article 1. Article 5. 

General Provisions. Inspection Tax; Stamps or Reports in 

g ec Lieu Thereof. 

3-602. Unmixed crushed ear corn a com- Sec. 

mercial feeding stuff. 3-641. Requirement of tax and stamps, 

i £t\? /-. . • i j j- * -u . 3-641.1. Refunds on certain sales by im- 

3-603. Certain sales and distributions un- porters> manufacturers and * ma _ 

i f,r\i it? aW i ^a i nipulators. 

t khr' o i i l 3-641.2. Permit to purchase feeding stuffs 

3-606. [Repealed] for mixi £ g an(J resa , e K whhout 

' first paying taxes thereon. 

Labeling. 

3-621. Labeling of concentrated commer- 
cial feeds. 

Article 1. 

General Provisions. 

§ 3-602. Unmixed crushed ear corn a commercial feeding stuff. 

Crushed or ground ear corn when sold by itself is a concentrated commercial 
feeding stuff and the sale thereof within this State shall be governed by the pro- 
visions of articles 1 to 6 of this chapter and the rules and regulations prescribed by 
the Commissioner of Agriculture. 

1942 Code § 6593-1; 1932 Code § 1367; Cr. C. '22 § 267; Cr. C. '12 § 480; 1910 (36) 613; 
1922 (32) 843; 1936 (39) 1615; 1941 (42) 119; 1959 (51) 290. 

Effect of amendment. — The 1959 amend- manufacturers in this State as determined 
ment eliminated the exception exempting by the amount of corncobs present. 

§ 3-603. Certain sales and distributions unlawful. 

It shall be unlawful for any manufacturer, importer, jobber, agent or dealer to: 

(1) Sell or offer or expose for sale or distribution in this State any concentrated 
commercial feeding stuff without complying with the requirements of articles 1 to 
6 of this chapter or 

(2) Sell or offer or expose for sale or distribution any concentrated commercial 
feeding stuff which contains substantially a smaller percentage of crude protein, 
crude fat or carbohydrates or a larger percentage of crude fiber than certified to be 
contained. 

1942 Code § 6597-1; 1932 Code 1368; Cr. C. '22 § 268; Cr. C. '12 § 481; 1906 (25) 101; 
1910 (26) 613; 1920 (31) 853; 1923 (33) 93; 1954 (48) 1471. 

Effect of amendment — The amendment 
eliminated items (3) and (4). 

§ 3-604. Unlawful to sell any compound of crushed ear corn. 
Repealed by A. & J. R. 1954 (48) 1471. 

§ 3-606. Sales to manufacturers, etc., excepted. 
Repealed by A. & J. R. 1957 (50) 51. 

§ 3-608. Regulations of Commissioner. 

Rules and regulations promulgated under Regulations, Agriculture Commissioner, in 
authority of this section, see Rules and Volume 7. 

Article 2. 
Registration. 
§ 3-613. Refusal or cancellation of registration. 

Cross reference. — As to revocation of ture "for cause," procedure, etc.. see §§ 3- 
registration by Commissioner of Agricul- 6.1 et seq. J 

67 



§ 3-621 Code of Laws of South Carolina § 3-641.2 

Article 3. 
Labeling. 
§ 3-621. Labeling of concentrated commercial feeds. 

(5) A statement of the maximum percentage it contains of crude fiber, the 
percentage of crude fat and the percentage of crude protein. 

1942 Code § 6587; 1932 Code § 6587; Civ. C. '22 § 3497; Civ. C. '12 § 2420; 1910 (26) 
613; 1936 (39) 1592; 1954 (48) 1696. 

Effect of amendment. — The amendment The section otherwise not amended and re- 
required percentage of crude fat and per- mains unchanged, 
centage of crude protein to be in statement. 

Article 4. 
Samples and Analysis. 
§ 3-632. Analysis of samples ; how samples taken. 

Stated in Griggs v. Driggers, 230 S. C. 
97, 94 S. E. 2d 225 (1956). 

§ 3-637. Certificate of analyst prima facie evidence. 

Quoted in Griggs v. Driggers, 230 S. C. 
97, 94 S. E. 2d 225 (1956). 

Article 5. 

Inspection Tax; Stamps or Reports in Lieu Thereof. 

§ 3-641. Requirement of tax and stamps. 

Editor's note. — For amendment, 1957 p. 
51, see § 3-641.1. 

§ 3-641.1. Refunds on certain sales by importers, manufacturers and manipu- 
lators. 

In the sale to each other by importers, manufacturers or manipulators who mix 
concentrated commercial feeding stuff, the purchaser may make application to the 
Commissioner for refund of the tax so paid if the tax has been paid on the finished 
product. The refund provided for herein shall be made pursuant to such rules and 
regulations as the Commissioner may promulgate. 

1957 (50) 51. 

§ 3-641.2. Permit to purchase feeding stuffs for mixing and resale without 
first paying taxes thereon. 
As an alternative method of handling the collection of the taxes provided for by 
§ 3-641, any importer, manufacturer or manipulator who buys from another 
importer, manufacturer or manipulator concentrated feeding stuff for mixing 
purposes and resale, may apply to the Commissioner of Agriculture for a permit, 
which may be issued by the Commissioner, which permit shall authorize the 
purchaser to buy such feed stuff for such purposes without any tax being first 
paid thereon, if the tax is paid when such material, either mixed with other ma- 
terials or in its original form, is resold. All permits shall be conditioned on the ap- 
plicant (1) agreeing to keep such records as may be necessary to indicate accurately 
the tonnage and kinds of commercial feeding stuffs or oil seed meals sold and as 
are satisfactory to the Commissioner and (2) granting the Commissioner or his 
duly authorized representative permission to examine such records and verify 
the statements of tonnage. To secure compliance herewith, and as a further condi- 
tion for obtaining such a permit, the purchaser shall, before securing such permit, 
deposit with the Commissioner cash in the amount of not less than five hundred 
dollars or securities acceptable to the Commissioner of equal value or shall post 
with the Commissioner a surety bond in like amount, executed by some corporate 

6R 



§ 3-675 



1960 Cumulative Supplement 



§ 3-675 



surety company authorized to do business in this State. The Commissioner shall 
approve all such securities and bonds before acceptance. If such purchaser has al- 
ready filed or files a bond or other security under the terms of § 3-644, he shall not 
be required to file any further bond or put up additional security, if he and his sure- 
ties agree that the bond or other security so filed shall extend to and cover the obli- 
gations assumed by him under any permit so issued to him. 
1958 (SO) 1926. 

Article 7. 



Stock or Poultry Preparations. 
Commissioner to enforce article. 

ture "for cause,' 
6.1 et seq. 



§ 3-675 

Cross reference. — As to revocation of 
registration by Commissioner of Agricul- 



procedure, etc., see §§ 3- 



Chap. 



Title 4. 
Alcohol and Alcoholic Beverages. 

1. The Alcoholic Beverage Control Act, §§ 4-12.1 to 4-150. 

2. Beer, Ale, Porter and Wine, §§ 4-205.1 to 4-220.103. 

3. Alcohol, §§ 4-305 to 4-308. 

4. Nuisances, Enforcement and Other Miscellaneous Provisions, §§ 4-411 

to 4-420. 

CHAPTER 1. 
The Alcoholic Beverage Control Act. 

Sec. 

4-95. Unlawful possession. 

4-97. [Repealed.] 

4-98. Employment of minor. 

4-99. Drinking on premises of liquor es- 
tablishments. 

4-101. Sale from vehicle, vessel or aircraft 
unlawful. 

4-102. Unlawful sales during certain days 
or periods proclaimed by 
Governor. 

4-103. Unlawful advertisements; destruc- 
tion. 

4-103.1. Manufacture, possession or sale of 
still unlawful. 

4-103.2. Same; prima facie evidence of vio- 
lation. 

4-103.3. Unlawful to allow still on premises. 

4-103.4. Unlawful manufacture, possession 
or transportation, etc., of mash 
or similar materials. 

4-103.5. Persons at still prima facie guilty 
of manufacturing, etc. 

4-104. Possession of firearm during unlaw- 
ful manufacture, etc. 

4-105. Refusal to permit inspection and 
search of premises with search 
warrant. 

4-105.1. Refusal to permit inspection of li- 
censed premises or stocks and 
invoices of the licensee. 

4-106. Rescuing liquors from officer. 

4-107. Penalties for violations of chapter 
or § 65-1270. 



Article 1. 
General Provisions. 
Sec. 

4-12.1. Effect of 1956 amendment on exist- 
ing laws, pending prosecutions, 
etc. 

Article 2. 
Provisions Relating to Tax Commission, 

Its Members and Employees. 
4-22. Inspectors. 

Article 3. 
Issue of Licenses; Bond or Deposit and 

Action Thereon. 
4-31. What licenses Commission may issue. 
4-31.1. Prohibited areas for places of 

business. 
4-32. Persons ineligible for licenses. 
4-36. Only three licenses per licensee. 
4-43.1. Wholesalers approved for license to 
post or deposit bond- 
Article 5. 
Regulation of Licensees. 
4-72.1. Not to sell on credit. 
4-73.1. Discounts, etc., by wholesalers. 
Article 6. 
Offenses and Enforcement 
4-91. Unlawful manufacture, sale or trans- 
portation, etc. 
4-91.1. Transportation or possession in 
chattel of unlawfully acquired 
or manufactured or unstamped 
linuors unlawful. 
4-92. Transportation in taxi, etc., unlawful. 
4-93. Assisting in unlawful transportation. 
4-94. Unlawful purchase. 






69 



Code Of Laws of South Carolina 



Sec. 
4-107. 

4-107. 

4-107 

4-107. 



1. Certain convictions to constitute 
prior offenses. 

2. Trial judge may reduce sentences 
prescribed for certain conviction. 

3. Reports of convictions to Tax 
Commission; use as evidence. 

4. Same; same; from general ses- 

sions court; reports of transpor- 
tation convictions to Highway 
Department. 

4-107.5. Revocation or restriction on issu- 
ance of beer, wine or liquor 
licenses or monetary penalties 
for conviction, etc., of violating 
§ 65-1270 or this article, except 
§§ 4-96 and 4-100. 

4-107.5-1. Same; licensees subject to mone- 
tary penalties for certain other 
violations. 

4-107.5-2. Penalties from § 65-1270 and this 
article, except §§ 4-96 and 4-100, 
for public schools; additional to 
court fines and penalties. 

4-107.6. Suspension of driver's license; 
vehicle registration prohibition. 

4-108. Distribution of certain fines. 

4-109. Illegal liquor in unlawful possession 
contraband; seizure and disposi- 
tion. 

4-110. Liquor found in business places 
other than liquor stores contra- 
band; seizure and disposition. 

4-110.1. Liquor sold from chattel or kept 
or transported therein illegally 
contraband; seizure and sale of 
such liquors and chattel. 

4-110.2. Certain chattels found at still to be 
confiscated and sold. 

4-111. Unstamped liquor contraband. 

4-111.1. Seizure and sale of seized liquors; 
disposition of receipts. 

4-112. Only pure liquors sold; others de- 
stroyed. 

4-113. Rejection of bid and resale. 

4-114. [Repealed.] 

4-115. [Repealed.] 

4-115.1. Sheriff to notify owner of regis- 
tered vehicle seized under §§ 4- 
110.1 and 4-110.2. 

4-115.2. Advertise seizure, forfeiture and 
sale of chattel. 

4-115.3. Sell chattel at public auction if no 
notice of interest therein given. 

4-115.4. Owner, certain debtors and lienors 
may sue for possession of chattel 
or value prior to sale; make 
sheriff party; solicitor to defend. 

4-115.5. Persons claiming seized chattels 
may obtain immediate posses- 
sion. 

4-115.6. Sheriff to stay sale on service of 
proceedings: appraisal of chattel. 

4-115.7. Proof required to recover chattel 
or value of interest therein. 

4-115.8. When restore chattel to owner. 

4-115.9. When deliver chattel to lienors. 



Sec. 

4-115.10. Sale and disposition of proceeds 
when delivery not demanded by 
claimant. 

4-115.11. Sale and disposition of proceed* 
when claim not proven. 

4-115.12. Disposition of proceeds of sale 
when no claimant. 

4-115.13. Purchaser at sale to acquire com- 
plete title. 

4-116. Procedure for confiscation of liquor 
or chattel. 

4-117. Use of motor vehicles confiscated in 
Dorchester County. 

4-117.1. Use of motor vehicles confiscated 
in Calhoun County. 

4-117.2. Use of motor vehicles confiscated 
in Bamberg County. 

4-118. Disposition of proceeds from fines, 
penalties, forfeitures and 6ales 
under certain sections. 

4-119. How seized chattels kept. 

4-120. Sheriffs report seizures and results 
of sales to Commission. 

4-121. Municipal ordinances prohibiting cer- 
tain acts herein prohibited sus- 
pended. 

4-122. Trial jurisdiction of municipal courts 
and judges thereof. 

4-123. Enforcement within municipalities. 

4-124. Invalidity of certain sections. 
Article 7. 

Shipment and Storage of Alcoholic Liquors. 

4-131. Definitions. 

4-132. Exemptions. 

4-133. Application of article. 

4-134. Registered producers only may ship 
alcoholic liquors into State. 

4-135. Application, fees and term of regis- 
tration of producers. 

4-136. Producer representatives to be reg- 
istered; application and fee. 

4-137. Brands of alcoholic liquors to be 
registered before importing. 

4-138. Term, fee and application forms for 
registration of brands. 

4-139. Applicants for certificates or licenses 
to permit examination of records. 

4-140. Commission to issue certificates or 
licenses or reject applications. 

4-141. Suspension or revocation of certifi- 
cates and licenses. 

4-142. Information producers and repre- 
sentatives to furnish Commis- 
sion on shipments into State. 

4-143. Information producer representatives 
to furnish for shipments origi- 
nating within State. 

4-144. Carriers; certificates required to ship 
within State. 

4-145. Storage of alcoholic liquors by reg- 
istered producers; warehouse li- 
cense and bond. 

4-146. Alcoholic liquors shipped illegally 
contraband; seizure and sale. 

4-147. Administration and enforcement. 

4-148. Rules and regulations. 

4-149. Deposit of receipts. 

4-150. Invalidity. 



70 



§ 4-1 1960 Cumulative Supplement § 4-22 

Article 1. 

General Provisions. 
§ 4-1. Title of chapter. 

This chapter cited in City of Spartan- 
burg v. Gossett, 228 S. C. 464, 90 S. E. 2d 
645 (1955). 

§ 4-2. Definitions. 

Cross reference. — For additional defini- containing 8.6% of alcohol is not within 

tions applicable to this chapter, see § 4-131. exceptions of this section and is in violation 

Possession or manufacture of home brew of § 4-91. Atty. Gen. Op., Apr. 16, 1959. 

§ 4-3. Alcohol and other products exempted. 

Sale of denatured alcohol for beverage beverage is subject to punishment pre- 
purposes violates this section and is subject scribed by § 4-417. Atty. Gen. Op., Dec. 15, 
to penalties of § 4-105, and use thereof as a 1958. 

§ 4-6. Rules and regulations of the Commission. 

Rules and regulations promulgated under Cross reference. — As to issuance of fur- 
authority of this section, see Rules and tlier rules and regulations applicable to 
Regulations, Tax Commission, in Volume shipping and storing alcoholic liquors, see 
7. § 4-148. 

§ 4-9. Storage by Department of Agriculture without tax stamps. 

Cross reference. — As to storage of al- 
coholic liquors by registered producers, see 
§ 4-145. 

§ 4-12.1. Effect of 1956 amendment on existing laws, pending prosecutions, 
etc. 

Sections 4-97 and 4-115, Code of Laws of South Carolina, 1952, and all acts 
and parts of acts inconsistent with the provisions of Act No. 820 of 1956 (Acts 
1956, p. 1992) are hereby repealed, but all such acts or parts of such acts shall 
remain in full force and effect insofar as they apply to and support prosecutions 
(a) for any violations thereof occurring prior to March 28 1956, and sentences 
for violations thereof occurring prior to March 28 1956 shall be imposed in ac- 
cordance therewith and (b) for the seizure, confiscation, forfeiture and sale of any 
property therein declared to be contraband. 

1956 (49) 1992. 

Cross reference. — As to effect of in- Editor's note. — For sections affected by 

validity of this section, see § 4-124. act 820 of 1956 see 1956 Tables in Volume 

8. 

Article 2. 
Provisions Relating to Tax Commission, Its Members and Employees. 
§ 4-22. Inspectors. 

The Commission may employ such inspectors as may be necessary for the proper 
administration and enforcement of the provisions of this chapter and chapter 14 
of Title 65. The salaries of said inspectors shall be fixed by the Commission and 
shall be payable as an expense of the administration of this chapter. The Governor 
shall commission as State constables such inspectors or agents as are certified to 
him by the Commission in order that they shall have adequate authority as peace 
officers to enforce the provisions of this chapter and chapter 14 of Title 65. Each 
inspector shall, before entering upon the discharge of his duties, take and subscribe 
the oath of office as required by Article III, section 26, of the Constitution of South 
Carolina, and also the additional oath required by §§ 50-52 and 50-53, and shall 
give bond payable to the State, in form approved by the Attorney General, in 

71 



§ 4-31 Code of Laws of South Carolina § 4-36 

the penal sum of five thousand dollars with some surety or guaranty company duly 
authorized to do business in this State and approved by the Commission, as surety, 
conditioned upon the faithful discharge of his duties. The premiums on such bonds 
shall be paid as an expense of the administration of this chapter and the bond shall 
be filed with and preserved by the Secretary of State. 

1945 (44) 337; 1955 (49) 329. 

Effect of amendment. — The amendment Inspectors should be allowed to cross 

eliminated the limit on number of inspec- Hilton Head Bridge on official business 
tors the Commission could employ, and en- without payment of toll. Atty. Gen. Op., 
larged the enforcement area of the in- Jul. 2, 1958. 
spectors and their authority. 

Article 3. 
Issue of Licenses; Bond or Deposit and Action Thereon. 

§ 4-31. What licenses Commission may issue. 

Cross reference. — As to further authority 1905, adding provisions prohibiting certain 

for revocation of warehouse license of reg- areas for places of business, see § 4-31.1. 
istered producer, see § 4-141. Stated in Asmer v. Livingston, 225 S. C. 

Editor's note.— For amendment, 1960 p. 341, 82 S. E. 2d 465 (1954). 

§ 4-31.1. Prohibited areas for places of business. 

The Commission shall not grant or issue any license provided for in this chapter 
if the place of business is within three hundred feet of any church, school or play- 
ground situated within a municipality or within five hundred feet of any church, 
school or playground situated outside of a municipality. Such distance shall be com- 
puted by following the shortest route of ordinary pedestrian or vehicular travel 
along the public thoroughfare from the nearest point of the grounds in use as part 
of such church, school or playground. As used herein, "church" is an establishment, 
other than a private dwelling, where religious services are usually conducted, 
"school" is an establishment, other than a private dwelling where the usual processes 
of education are usually conducted and "playground" is a place, other than 
grounds at a private dwelling, which is provided by the public or members of a 
community for recreation. 

The above restrictions shall not apply to the renewal of licenses existing May 
24 1960 or to then locations. 

1960 (51) 1905. 

§ 4-32. Persons ineligible for licenses. 

* * * 

(3) Has not been a bona fide actual resident of and maintained his principal 
place of abode in the county in which the proposed business is to be located and 
operated or an adjoining county for at least one year prior to the date of applica- 
tion ; 

• * * 

1945 (44) 337; 1955 (49J 329. 

Cross reference. — For issuance of ware- abode and increased time of residence, etc., 

house license to registered producer, see from six months to one year prior to ap- 

§ 4-141. plication. The section other than item (3) 

Effect of amendment. — The amendment not affected, 
added maintenance of principal place of 

§ 4-36. Only three licenses per licensee. 

No more than three licenses shall be issued to any one licensee provided such 
licensee is eligible for a license with respect to each store as prescribed by § 4-32. 

1945 (44) 337; 1956 (49) 1841. 

Cross reference. — As to effect of in- Effect of amendment. — Formerly only 

validity of this section, see § 4-124. one license permitted to each licensee. 

72 



§ 4-43 1960 Cumulative Supplement § 4-91 

§ 4-43. Bond or deposit of licensee. 

"Lawful operation of the business" is a ages for the tort of a liquor dealer which 

condition of the bond required of a liquor he may commit against an individual 

dealer by this section, but it will hardly be Rogers v. U. S. Fidelity & Guaranty Co., 

contended that the bond is liable for dam- 225 S. C. 298, 81 S. E. 2d 896 (1954). 

§ 4-43.1. Wholesalers approved for license to post or deposit bond. 

Every person upon whose application for a wholesale liquor dealer's license the 
Commission has acted favorably shall within ten days from the date of the receipt 
by him of notice of favorable action by the Commission either (a) file with the 
Commission a bond payable to the State, in form approved by the Commission, in 
the penal sum of twenty-five thousand dollars, with some surety or guaranty com- 
pany duly authorized to do business in this State and approved by the Commis- 
sion as surety, conditioned upon the lawful operation of the business covered by 
the license and the prompt payment of all taxes imposed by §§ 65-1264, 65-1282.1 
and 65-1286.1 or (b) deposit with the State Treasurer cash in the amount of 
twenty-five thousand dollars or securities sufficient in the opinion of the State 
Treasurer to secure adequately the amount of twenty-five thousand dollars, which 
deposit shall be made upon the same condition as that required to be set forth in 
such bond, and such deposit shall be held by the State Treasurer without interest. 

1956 (49) 1841. 

Cross reference. — As to effect of invalid- 
ity of this section, see § 4-124. 

§ 4-54. When licenses suspended or revoked. 

Cross reference.— As to certain convic- 
tions revoking license, see § 4-107.5. 

Article 5. 
Regulation of Licensees. 
§ 4-72. Maximum sale prices for wholesalers and retailers. 

Retailer not compelled to charge maxi- dealer to charge and collect a profit ol 
mum price. — There is nothing in this sec- 25%. Jenkins v. Livingston, 219 S. C. 260, 
tion which compels a retail liquor store 64 S. E. 2d 883 (1951). 

§ 4-72.1. Not to sell on credit. 

Wholesale and retail liquor dealers are hereby prohibited from selling alcoholic 
liquors on credit. 

1956 (49) 1841. 

Cross reference. — As to effect of invalid- 
ity of this section, see § 4-124. 

§ 4-73.1. Discounts, etc., by wholesalers. 

The offering or making payment of liquor or cash discounts by wholesale liquor 
dealers and distributors to induce the sale or purchase of alcoholic beverages is 
prohibited. 

1958 (50) 1721. 

Article 6. 

Offenses and Enforcement. 

§ 4-91. Unlawful manufacture, sale or transportation, etc. 

Re-enacted by A. & J. R. 1956 (49) 1992. 

Cross references. — As to effect of in- stances, in a prosecution for violation of 

validity of this article, see § 4-124. the liquor laws. State v. Rayfield, 232 S. C. 

"Part of the process of the manufacture 230. 101 S. E. 2d 505 (1958). 
of alcoholic liquor" statedin § 4-103.4. Evidence of prior violations may be re- 
Each case must be decided on its own ceived if not too remote in time. — On a 
peculiar facts and surrounding circum- charge of storing and keeping liquor evi- 

73 



§ 4-91.1 Code of Laws of South Carolina § 4-94 

deuce of prior violations may be received, Applied in State v. Gordon, 224 S. C. 
if not too remote in time, to show con- 433, 79 S. E. 2d 869 (1954). 
tinuity or habit, and evidence of an offense Possession or manufacture of home brew 
about five months before was not too re- containing 8.6% of alcohol violates this sec- 
mote, but one several years earlier was. tion. Atty. Gen. Op., Apr. 16, 1959. 
State v. Thompson, 230 S. C. 473, 96 S. E. 
2d 471 (1957). 

§ 4-91.1. Transportation or possession in chattel of unlawfully acquired or 
manufactured or unstamped liquors unlawful. 

It shall be unlawful for anyone to keep, store, have in possession, carry, ship or 
transport in any vehicle, vessel, aircraft or other chattel any alcoholic liquors, as 
defined in § 4-2, unlawfully acquired, manufactured or which do not bear proper 
Federal and State revenue stamps. 

1956 (49) 1992. 

§ 4-92. Transportation in taxi, etc., unlawful. 

It shall be unlawful for any person to transport any alcoholic liquor, even though 
properly manufactured and stamped, in a motor vehicle used as a taxi or used in 
the transportation of passengers for hire ; provided, that this shall not apply to legal 
alcoholic liquors belonging to a passenger being transported when such alcoholic 
liquors are in the baggage of such passenger or upon his person. If such alcoholic 
liquor be found in such vehicle, the vehicle shall be seized and forfeited, as provided 
for in §§ 4-110, 4-115.1 to 4-115.13 and the alcoholic liquor shall be seized as 
contraband and sold as provided in § 4-111.1. 

1947 (45) 155; 1956 (49) 1992. 

Effect of amendment. — The 1956 amend- even though the liquor was properly manu- 
ment changed "beverages" to "liquors," factured and stamped and eliminated the 
made prohibited transportation unlawful penal provisions. 

§ 4-93. Assisting in unlawful transportation. 

Any person acting as an advance or rear guard or pilot to any person engaged 
in the transportation of alcoholic liquors in violation of any of the provisions of 
law of this State shall be guilty of the offense of knowingly transporting alcoholic 
liquors for unlawful purposes as defined by the laws of this State and shall be 
punished as provided therefor. The buggy, wagon, automobile, aircraft, railroad 
car, bicycle, motorcycle or other vehicle or any boat, launch or other vessel used 
by such person in rendering such aid may be confiscated as provided in §§ 4-110.1, 
4-115.1 to 4-115.13. 

1942 Code § 1898; 1932 Code § 1903; 1928 (35) 1148; 1956 (49) 1992. 

Effect of amendment — The 1956 amend- was used with his knowledge or consent or 
ment added aircraft to the vehicles which of the agent of such owner, 
may be confiscated and eliminated require- Applied in State v. Edwards, 220 S. C. 

ment for forfeiture that person rendering 373, 68 S. E. 2d 346 (1951). 
aid should be the owner or that the vehicle 

§ 4-94. Unlawful purchase. 

It shall be unlawful for any person to purchase or otherwise procure any alcoholic 
liquor other than that purchased from licensed dealers within the State. 

1945 (44) 164; 1956 (49) 1992. 

Effect of amendment. — The 1956 amend- traffic in liquor or in the game of boot- 
ment eliminated requirement that purchase legging and are within jurisdiction of a 
or procurement lie "within this State" and magistrate for the first offense. Atty. Gen. 
also eliminated that the purchase be from Op. Aug. 18, 1955. 

licensed dealers "as provided for in this Cited in State v. McCrae, 222 S. C. 194, 

chapter." 72 S. E. 2d 451 (1952); State v. Conally, 

Magistrate's jurisdiction.— This section 227 S. C. 507, 88 S. E. 2d 591 (1955). 
and §§ 4-98 and 4-99 do not deal with illegal 

74 



§ 4-95 1960 Cumulative Supplement § 4-103.1 

§ 4-95. Unlawful possession. 

Re-enacted by A. & J. R. 1956 (49) 1992. 

Jurisdiction to try first offense of un- nection with defendant's cafe business, and 

lawful possession. — See note to § 43-68. mere fact of defendant's ownership of 

This section does not repeal by impli- building and occupancy of second floor as 

cation § 4-401, declaring the unlawful evidence by his employee-tenant would 

keeping in possession of alcoholic liquor not warrant such inference. State v. Little- 

a common nuisance. State v. McCrae, 222 John, 228 S. C. 324, 89 S. E. 2d 924 (1955). 
S. C. 194, 72 S. E. 2d 451 (1952). Applied in State v. Jiles, 230 S. C. 148, 

Second floor apartment not part of place 94 S. E. 2d 891 (1956). 
of business. — There was no evidence from Cited in State v. Conally, 227 S. C. 507, 

which it could reasonably be inferred that 88 S. E. 2d 591 (1955). 
second floor of building was used in con- 

§ 4-97. Maintaining club rooms for unlawful use of liquor. 

Repealed by A. & J. R. 1956 (49) 1992. 

§ 4-98. Employment of minor. 

Re-enacted by A. & J. R. 1956 (49) 1992. 

Magistrate's jurisdiction. — This section magistrate for the first offense. Atty. Gen. 

and §§ 4-94 and 4-99 do not deal with illegal Op. Aug. 18, 1955. 

traffic in liquor or in the game of boot- Cited in State v. Conally, 227 S. C. 507, 

legging and are within jurisdiction of a 88 S. E. 2d 591 (1955). 

§ 4-99. Drinking on premises of liquor establishments. 

Re-enacted by A. & J. R. 1956 (49) 1992. 

Magistrate's jurisdiction. — This section a magistrate for the first offense. Atty. Gen. 

and §§ 4-94 and 4-98 do not deal with Op. Aug. 18, 1955. 

illegal traffic in liquor or in the game of Cited in State v. Conally, 227 S. C. 507, 

bootlegging and are within jurisdiction of 88 S. E. 2d 591 (1955). 

§ 4-101. Sale from vehicle, vessel or aircraft unlawful. 

It shall also be unlawful for anyone to sell from any vehicle, vessel or aircraft any 
quantity of alcoholic liquors, stamped or unstamped. 
1956 (49) 1992. 

§ 4-102. Unlawful sales during certain day3 or periods proclaimed by 
Governor. 

It shall be unlawful to sell any alcoholic liquors on Sunday, on election days, or 
during periods proclaimed by the Governor in the interest of law and order or 
public morals and decorum. Full authority to proclaim such periods is hereby con- 
ferred upon the Governor in addition to all other powers in him now reposed. 

1945 (44) 337; 1956 (49) 1992. 

Effect of amendment.— The 1956 amend- Applied in State v. Bolin, 230 S. C. 204, 

ment eliminated requirement that periods 95 S. E. 2d 163 (1956). 
proclaimed by the Governor be of an emer- Cited in State v. Conally, 227 S. C. 507, 

gency nature. 88 S. E. 2d 591 (1955). 

§ 4-103. Unlawful advertisements; destruction. 

It shall be unlawful for any person to advertise any alcoholic liquors by means 
of billboards along public highways and streets. Any such advertisements shall be 
destroyed by peace officers forthwith upon discovery. 

1945 (44) 337; 1956 (49) 1992. 

Effect of amendment.— The 1956 amend- Cited in State v. Conally, 227 S. C. 507, 

ment added the last sentence. 88 S. E. 2d 591 (1955). 

§ 4-103.1. Manufacture, possession or sale of still unlawful. 

It shall be unlawful for any person in this State to manufacture, sell, give away 
or have in possession any distillery, commonly called a still, or any integral part 

75 Volume 1 



§ 4-103.2 Code of Laws of South Carolina § 4-105 

thereof, or any apparatus, appliance, device or substitute therefor, to be used for 
the purpose of manufacturing any alcoholic liquors, in violation of any of the laws 
of this State. 
1956 (49) 1992. 

§ 4-103.2. Same ; prima facie evidence of violation. 

The unexplained possession of any part or parts of any still, apparatus or appli- 
ance, or any device or substitute therefor, commonly or generally used for or that 
is suitable to be used in the manufacture of prohibited alcoholic liquors shall be 
prima facie evidence of the violation of § 4-103.1. 

1956 (49) 1992. 

§ 4-103.3. Unlawful to allow still on premises. 

It shall be unlawful for any person to knowingly permit or allow anyone to have, 
possess or locate on his premises any apparatus for the distilling or manufacture of 
alcoholic liquors against the laws of this State. 

1956 (49) 1992. 

§ 4-103.4. Unlawful manufacture, possession or transportation, etc., of mash 
or similar materials. 

It shall be unlawful to make, manufacture, transport, possess or knowingly per- 
mit upon one's premises any mash, wort, wash, buck or other similar material or 
compound suitable for or commonly used in the manufacture of alcoholic liquors 
with the intent that such material or compound shall be used in the manufacture 
of alcoholic liquors in violation of the laws of this State. The making, manufacture, 
transportation, possession or knowingly permitting upon one's premises such ma- 
terial or compound is hereby declared to be a part of the process of the manufacture 
of alcoholic liquors. Any person found in possession of such material or compound 
or found at a place where such material or compound is stored, kept, made, manu- 
factured or found shall be prima facie guilty of the violation of this section. 

1956 (49) 1992. 

§ 4-103.5. Persons at still prima facie guilty of manufacturing, etc. 

Every person found at any distillery or other place where alcoholic liquors are 
being manufactured in violation of the laws of this State shall be deemed prima 
facie guilty of manufacturing the same or aiding and abetting in such manufacture 
and, upon conviction, shall be punished as if personally manufacturing the same. 

1956 (49) 1992. 

§ 4-104. Possession of firearm during unlawful manufacture, etc. 

If any person shall unlawfully manufacture, transport or sell any alcoholic liquors 
or aid or assist in any manner in such act and at the time of such unlawful manufac- 
turing, transporting, selling, aiding or assisting shall carry on or about his person 
or have on or in any vehicle which he may be using to aid him in any such purpose 
or in his possession, actual or constructive, any firearm or any weapon of like kind 
he shall be guilty of a misdemeanor and, upon conviction, shall be confined in the 
penitentiary not less than one year nor more than three years or be fined not 
less than five hundred dollars nor more than fifteen hundred dollars. 

1942 Code § 1857; 1935 (39) 325; 1956 (49) 1992. 

Effect of amendment. — The 1956 amend- 
ment provided for a fine in lieu of sentence 
upon conviction. 

§ 4-105. Refusal to permit inspection and search of premises with search 
warrant. 

Any person who shall upon presentation of a legally executed search warrant, 
and upon demand of any officer or agent of the Tax Commission or of any peace 

76 



§ 4-105.1 1960 Cumulative Supplement § 4-107 

officer, refuse to allow full inspection and search of the premises or who shall hinder 
or in any wise delay or prevent full inspection or search, except that no occupied 
dwelling house shall be searched between sundown and sunrise, shall be deemed 
guilty of a misdemeanor and, upon conviction, be fined not more than two hundred 
dollars or imprisoned for a period not exceeding sixty days, or both. 

1945 (44) 337; 1956 (49) 1992. 

Effect of amendment. — The 1956 amend- search" after "inspection" and also the ex- 
ment added "upon presentment of a legally ception as to searching dwellings, 
executed search warrant, and," also "and 

§ 4-105.1. Refusal to permit inspection of licensed premises or stocks and 
invoices of the licensee. 

Any person who shall upon demand of any officer or agent of the Tax Com- 
mission or of any peace officer refuse to allow full inspection of the premises or 
any part thereof which is licensed to sell alcoholic liquors or beer or wine or refuse 
to allow full inspection of the stocks and invoices of the licensee or who shall hinder 
or in any wise delay or prevent such inspection shall be deemed guilty of a mis- 
demeanor and, upon conviction, be fined not more than two hundred dollars or 
imprisoned for a period not exceeding sixty days, or both. 

1956 (49) 1992. 

§ 4-106. Rescuing liquors from officer. 

Every person who dispossesses or rescues or attempts to dispossess or rescue 
from a constable or other officer any alcoholic liquors or beverages taken or de- 
tained by such officer charged with the enforcement of this chapter shall upon con- 
viction be punished by imprisonment for not less than three months nor more 
than twelve months or by a fine of not less than five hundred dollars nor more 
than fifteen hundred dollars, or both. 

1942 Code § 1891; 1932 Code § 1867; Cr. C. '22 § 855; Cr. C. '12 § 832; Cr. C. '02 
§ 592; 1896 (22) 127; 1897 (22) 805; 1901 (23) 705; 1956 (49) 1992. 

Effect of amendment. — The 1956 amend- the maximum fine from five hundred dollars 
ment increased the minimum fine from one to fifteen hundred dollars and also provided 
hundred dollars to five hundred dollars and for imposition of sentence and fine. 

§ 4-107. Penalties for violations of chapter or § 65-1270. 

Every violation of any provision of this chapter or § 65-1270 shall be a misde- 
meanor and, upon conviction, shall be punished as follows: 

(1) For any violation of the provisions of §§ 4-94, 4-98, 4-99 or 65-1270. 

(a) For a first offense, by a fine of one hundred dollars or imprisonment for 
thirty days. 

(b) For a second offense, by a fine of two hundred dollars or imprisonment for 
sixty days. 

(c) For a third or subsequent offense, by a fine of three hundred dollars or 
imprisonment for ninety days. 

(2) For any violation of the provisions of §§ 4-95, 4-102 or 4-103. 

(a) For a first offense, by a fine of two hundred dollars or imprisonment for 
sixty days. 

(b) For a second offense, by a fine of one thousand dollars or imprisonment 
for twelve months. 

(c) For the third or subsequent offense, by a fine of two thousand dollars or 
imprisonment for two years. 

(3) For any violation of the provisions of §§ 4-91, 4-91.1, 4-92, 4-93, 4-101, 
4-103.1, 4-103.2, 4-103.3, 4-103.4 or 4-103.5. 

77 



§ 4-107.1 Code of Laws of South Carolina § 4-107.3 

(a) For a first offense, by a fine of not less than six hundred dollars or im- 
prisonment for six months. 

(b) For a second offense, by a fine of one thousand five hundred dollars or im- 
prisonment for one year. 

(c) For a third or subsequent offense, by a fine of three thousand dollars or 
imprisonment of two years. 

(4) For each violation of any other provision of this chapter, except where a 
different punishment is expressly provided, a fine or imprisonment in the discretion 
of the court of general sessions. 

194S (44) 337; 1949 (46) 645; 1951 (47) 546; 1956 (49) 1992. 

Cross reference. — As to jurisdiction to viction of unlawful possession of liquors 

try first offense of unlawful possession of in defendant's place of business was not 

intoxicating liquor, see note to § 43-68. excessive. State v. Goodall, 221 S. C. 175, 

Effect of amendment.— The amendment 69 S. E. 2d 915 (1952). 

eliminated former subdivision (1) and Supreme Court without jurisdiction to 

added above subdivisions (1), (2) and (3). disturb alleged excessive sentence which is 

Present subdivision (4) formerly numbered within limits prescribed by statute, unless 

(2). statute itself violates Art. 1, Sec. 19 of 

There is no ambiguity in language of Constitution prohibiting cruel and unusual 
this section, and resort to original enact- punishment, or sentence is result of par- 
ment for ascertaining its meaning may not tiality, prejudice, oppression or corrupt mo- 
be had. State v. Conally, 227 S. C. 507, tive. State v. Conally, 227 S. C. 507, 88 
88 S. E. 2d 591 (1955). S. E. 2d 591 (1955); State v. Jiles, 230 S. C. 

Penalty.— Where defendant convicted by 148, 94 S. E. 2d 891 (1956). 

plea of violation of §65-1270, penalty there- Jurisdiction of magistrate. — By reason 

for is prescribed in subsection (2) of this of penalty prescribed by subsection (1) 

section or §17-553, even though original (a) of this section, first offense under 

enactment limited punishment therefor to §§ 4-94, 4-98 and 4-99 is within jurisdiction 

that prescribed in subsection (1) of this of magistrate. Atty. Gen. Op. Aug. 18, 

section. State v. Conally, 227 S. C. 507, 1955. (Section amended 1956 p. 1992.) 

88 S. E. 2d 591 (1955). Cited in State v. McCrae, 222 S. C. 194. 

Sentence not excessive. — A sentence of 72 S. E. 2d 451 (1952). 
eighteen months in prison upon a con- 

§ 4-107.1. Certain convictions to constitute prior offenses. 

A conviction, plea of guilty or nolo contendere or forfeiture of bond for the 
violation on or after March 28 1956 of any of the laws of this State or of the 
United States relating to alcoholic liquor shall constitute a prior offense for the 
purpose of any prosecution or for the purpose of imposition of sentence for any 
subsequent violation of § 65-1270 and this article except § 4-100. 

1956 (49) 1992. 

§ 4-107.2. Trial judge may reduce sentences prescribed for certain conviction. 

The trial judge, in his discretion, may impose sentence under the provisions of 
§ 65-1270 and this article except §§ 4-96 and 4-100 and subdivision 4 of § 4-107, 
or any portion thereof, of a fine or by imprisonment of not less than one-half the 
fine or imprisonment prescribed for conviction under said provisions. 

1956 (49) 1992; 1959 (51) 77. 

Effect of amendment. — The 1959 amend- sion of sentence and placing on probation 
ment added the above provision and elimi- but permitting reduction of sentence on cer- 
nated former provisions prohibiting suspen- tain plea. 

§ 4-107.3. Reports of convictions to Tax Commission; use as evidence. 

All clerks of court, magistrates, city recorders and all other public officers in this 
State having charge or responsibility with respect to keeping records of convictions, 
the entry of pleas of guilty or nolo contendere or of the forfeitures of bail posted for 
violations of § 65-1270 and this article, except §§ 4-96 and 4-100, shall report to 
the beverage tax division of the Tax Commission every such conviction, plea or 
bail forfeiture within ten days after such conviction, entry of a plea of guilty or 

78 



§ 4-107.4 1960 Cumulative Supplement § 4-107.5 

nolo contendere or forfeiture of bail or after the receipt of such report, as the case 
may be. Such reports shall be made upon forms provided by the Commission, ar- 
ranged in duplicate, and the director of the beverage tax division of the Commission 
shall acknowledge the riling of each such report by signing the duplicate of such 
report and returning it to the officer making the same, which shall be kept by such 
officer as evidence of his compliance with the requirements that he make such report. 
Such reports or certified copies thereof shall be received as evidence under the 
provisions of § 65-1270 and this article except §§ 4-96 and 4-100. 

Any person violating the provisions of this section shall be subject to a penalty 
of twenty-five dollars for each such failure, to be collected by the Attorney General 
or the solicitors under the direction of the Attorney General and paid into the 
general funds of the State. 

19S6 (49) 1992. 

§ 4-107.4. Same; same; from general sessions court; reports of transportation 
convictions to Highway Department. 

The clerk of court of each county in the State shall at the conclusion of each 
term of the court of general sessions therein forward to the Tax Commission a 
certificate on forms prescribed and furnished by the Commission showing the name 
of each person convicted or who pleaded guilty, entered a plea of nolo contendere 
or forfeited bond for the violation of any of the provisions of § 65-1270 and this 
article, except §§ 4-96 and 4-100. The Commission shall maintain a file of such 
violations and a copy of its records pertaining to such conviction, certified as cor- 
rect by the director of the beverage tax division or by any member of the Com- 
mission shall be admissible in all courts as prima facie evidence of the facts therein 
recited. The Commission shall upon receipt of a record of conviction, plea of guilty 
or nolo contendere or forfeiture of bond for the violation of the provisions of such 
provisions prohibiting the transportation of alcoholic liquors forward to the State 
Highway Department a duly certified copy of such record. 

19S6 (49) 1992. 

§ 4-107.5. Revocation or restriction on issuance of beer, wine or liquor licenses 
or monetary penalties for conviction, etc., of violating § 65-1270 
or this article, except §§ 4-96 and 4-100. 

A conviction, a plea of guilty, a forfeiture of bond or a plea of nolo contendere, 
under the provisions of § 65-1270 and this article, except §§ 4-96 and 4-100, shall 
automatically revoke any beer, wine or liquor license which this State may have at 
any time issued to the party convicted, pleading guilty, forfeiting bond or pleading 
nolo contendere ; however, as an alternative to such revocation, the Commission 
may in its discretion impose a monetary penalty in lieu thereof. 

For the first offense, the license shall either be revoked for a period of one year 
or the licensee shall pay a penalty to the Commission in the sum of two hundred 
fifty dollars. In the event of a subsequent offense, the offender's license shall be 
revoked for a period of two years or the licensee shall pay a penalty in the sum 
of five hundred dollars to the Commission. In the event that the Commission 
exercises its right to impose such monetary penalty in lieu of a revocation of a 
license and if, for any reason, the penalty is not paid within ten days of demand 
by the Commission, the license shall be automatically revoked as herein provided. 

If the party convicted, pleading guilty, forfeiting bond or pleading nolo con- 
tendere, does not possess a license to sell beer or liquor, in the event of his first 
offense, he shall not be eligible for the issuance of such a license for a period of 
one year. In the event of a subsequent offense, he shall not be eligible for the is- 
suance of such a license for a period of two years. 

1956 (49) 1841 [1970]; 1960 (51) 1779 [1893]. 

79 



§ 4-107.5-1 Code of Laws ok South Carolina § 4-108 

Editor's note. — For remainder of 1960 p. viction and the last paragraph relating to 

1779 [1893], see § 4-107.5-1 (licensees sub- spouse of person convicted. See §§ 4-107.5-1 

ject to monetary penalties for certain other and 4-107.5-2 for other provisions added, 
violations) and § 4-107.5-2 (penalties from Disjunctive should be used to carry out 

§ 65-1270 and this article, except §§ 4-96 legislative intent. — When codified, the open- 

and 4-100, for public schools; additional to ing phrase of this section should read: "A 

court fines and penalties). conviction under the provisions of § 65-1270 

Effect of amendment. — The 1960 amend- or this article," in order to carry out legis- 

ment added plea of guilty, forfeiture of lative intent. Atty. Gen. Op., Oct. 6, 1958. 
bond and plea of nolo contendere, monetary Wife's beer license properly revoked 

penalty provisions, reduced periods of rev- where husband pleaded guilty to offense of 

ocation, eliminated wine license from third illegally transporting liquor. Atty. Gen. 

paragraph, provisions relating to third con- Op., Oct. 25, 1958. 

§ 4-107.5-1. Same; licensees subject to monetary penalties for certain other 
violations. 

For all other violations of § 65-1270 and this article, except §§ 4-96 and 4-100, 
and chapters 2 and 4 of this Title and chapter 10 of Title 65 and for any violation 
of any regulation promulgated by the Commission pertaining to beer, wine or 
liquor, the Commission may, in its discretion, impose a monetary penalty upon the 
holder of any such license in lieu of suspension or revocation thereof. 

In such cases the amount of penalty imposed, if any, shall be determined within 
the limits prescribed hereafter in each case by the Commission after a hearing as 
provided in §§ 4-57 or 4-216. For any of such violations retail beer and/or wine 
licensees shall be subject to a penalty of not less than twenty-five dollars nor more 
than one thousand dollars, wholesale beer and wine licensees and retail liquor 
licensees shall be subject to a penalty of not less than one hundred dollars nor more 
than one thousand five hundred dollars and wholesale liquor licensees shall be 
subject to a penalty of not less than five hundred dollars nor more than five 
thousand dollars. In the event the Commission imposes a monetary penalty, as 
provided above and if, for any reason, the penalty is not paid within ten days 
after demand thereof by it, such license may be suspended or revoked by the 
Commission. 

1960 (51) 1779 [1893], 

§ 4-107.5-2. Penalties from § 65-1270 and this article, except §§ 4-96 and 
4-100, for public schools ; additional to court fines and penalties. 

All penalties provided for in § 65-1270 and this article, except §§ 4-96 and 
4-100, shall be paid into the State Treasury for credit to the general fund of the 
State for public school use. Such penalties shall be in addition to any fines and 
penalties imposed upon such licensees by any court of competent jurisdiction for 
violation of anv of the laws of this State. 

1960 (51) 1779 [1893]. 

§ 4-107.6. Suspension of driver's license ; vehicle registration prohibition. 

The State Highway Department, upon notice that any person has been convicted, 
pled guilty, forfeited bond or entered a plea of nolo contendere for the violation 
of any of the provisions of this article prohibiting the transportation of alcoholic 
liquors, shall suspend the driver's license of such person for a period of six months 
for a first offense, for a period of one year for a second offense and for a period 
of two years for a third and subsequent offense. And such person shall not, during 
the period of any suspension made hereunder, have any vehicle registered in his 
name under the laws of this State. 

1956 (49) 1992. 

§ 4-108. Distribution of certain fines. 

In all prosecutions for violation of the provisions of articles 1 to 4 of this chapter 
and §§ 4-96 and 4-100 when municipal officers are solely responsible for discovering 

80 



§ 4-109 1960 Cumulative Supplement § 4-110.2 

the violation or producing the witnesses or the evidence upon which a conviction 
is had, the fines collected shall be equally divided between the county and such 
municipality. The municipality's portion shall be paid upon voucher issued by the 
governing body of the county after approval of a claim duly filed, setting forth 
the case and the witnesses produced. 
1945 (44) 337; 1956 (49) 1992. 

Cross reference. — See also § 4-118 for a legislative intent to divest municipal 
distribution of certain fines, forfeitures and courts of jurisdiction to try offenders for 
sales receipts. violation of ordinances regulating alcoholic 
Effect of amendment. — The 1956 amend- liquors, which was obviously designed to 
ment provided for reference to articles 1 to afford some compensation to municipalities 
4 and §§ 4-96 and 4-100 instead of "this for aid rendered by their officers in en- 
chapter." forcement of the Alcoholic Beverage Con- 
Municipal jurisdiction not divested. — trol Act. City of Spartanburg v. Gossett, 
There is nothing in this section evidencing 228 S. C. 464, 90 S. E. 2d 645 (1955). 

§ 4-109. Illegal liquor in unlawful possession contraband; seizure and dis- 
position. 

All alcoholic liquors found in the possession, custody, or within the control of 
any person which are handled, stored, used or distributed in violation of any of 
the provisions of this chapter or with the design of avoiding payment of any license 
taxes provided in chapter 14 of Title 65 are hereby declared to be contraband and 
may be seized by the Commission and its agents, or any peace officer, without war- 
rant, and disposed of in like manner as is provided in § 4-111.1. 

1945 (44) 337; 1956 (49) 1992. 

Effect of amendment. — Reference § 4- 
111 changed to § 4-111.1. 

§ 4-110. Liquor found in business places other than liquor stores contraband; 
seizure and disposition. 

All alcoholic liquors found in any place of business, as such words are used and 
defined in § 4-95, other than a licensed liquor store, are hereby declared to be contra- 
band, and shall be subject to seizure, confiscation and sale by the Tax Commission, 
its respective agents or any peace officer, without warrant, and disposed of in like 
manner as is provided in § 4-111.1. 

1945 (44) 337; 1956 (49) 1992. 

Effect of amendment. — Reference § 4- 
111 changed to § 4-111.1. 

§ 4-110.1. Liquor sold from chattel or kept or transported therein illegally 
contraband; seizure and sale of such liquors and chattel. 

If any such liquors, in any quantity, are sold from any vehicle, vessel, aircraft or 
other chattel or if any alcoholic liquor is possessed, carried, shipped, stored in, kept 
in or transported in any such chattel in violation of law, the alcoholic liquor shall be 
seized and sold as contraband as provided in § 4-111.1 and such chattel shall be 
seized by any peace officer and delivered to the sheriff of the county where such 
seizure is made, if seizure is made by other than a sheriff, who shall proceed to for- 
feit and sell the chattel as provided in §§ 4-115.1 to 4-115.13. 

1956 (49) 1992. 

§ 4-110.2. Certain chattels found at still to be confiscated and sold. 

Any vehicle, vessel, aircraft or other chattel found at a site where alcoholic liquors 
are being or have been recently manufactured in violation of the law, and such chat- 
tel contains sugar, meal, yeast or other materials used in the manufacture of alco- 
holic liquors, or containers used to haul alcoholic liquors, shall be confiscated and 
sold as provided by §§ 4-115.1 to 4-115.13. 

1956 (49) 1992. 

81 



§ 4-111 Code of Laws of South Carolina § 4-115 

§ 4-111. Unstamped liquor contraband. 

Any alcoholic liquors found in the possession of any one within this State not 
having affixed to the bottle or container the stamps required in chapter 14 of Title 
65 are hereby declared to be contraband and the same may be seized by the Tax 
Commission or its agents or by any peace officer without warrant. 

1945 (44) 337; 1955 (49) 329; 1956 (49) 1992. 

Cross reference. — Tax liability of posses- Editor's note. — See § 4-111.1 for remain- 

sor of unstamped alcoholic liquors or mash, der of this section and for effect of amend- 
§§ 65-1321, et seq. ments, 1955 p. 329 and 1956 p. 1992. 

§ 4-111.1. Seizure and sale of seized liquors; disposition of receipts. 

Any alcoholic liquors seized by the Commission or its agents shall be sold by the 
Commission at public auction to the highest bidder after due advertisement and the 
proceeds of such sale shall be turned over to the State Treasurer in the same manner 
as is provided in § 4-114. Any alcoholic liquors seized by any peace officer except 
the Commission or its duly authorized agents shall be delivered to the sheriff of the 
county in which such seizure is made and the sheriff shall take possession of such 
alcoholic liquors so seized for sale at public auction to the highest bidder after due 
advertisement. The proceeds of such sale, after payment of the costs of confiscation 
and sale, shall be immediately turned over to the treasurer of the county in which 
the seizure was made, but when municipal officers make such seizure, the proceeds 
of such sale shall be paid to the municipality, upon voucher issued by the governing 
body of the county, after approval of a claim duly filed by municipal authorities. No 
sale of alcoholic liquors seized and sold in accordance with the provisions of this 
chapter shall be made to any person other than a duly licensed manufacturer, whole- 
saler or retail dealer. All such goods so seized shall before delivery to any pur- 
chaser be stamped by such purchaser with the proper amount of stamps on each 
individual package. 

1945 (44) 337; 1955 (49) 329; 1956 (49) 1992. 

Effect of amendments. — The 1955 amend- proceeds of sale after payment of costs to 
ment provided further for sale of alcoholic go to the county or municipality making 
liquors seized by the Tax Commission or seizure instead same going to the State, 
its agents and disposition of proceeds, and Alcoholic liquors seized by municipal 

left other seizures by peace officers to be officer should be delivered to sheriff for 
sold by the sheriff with the proceeds going sale in accordance with provisions of this 
to the Commission. section. Atty. Gen. Op., Sep. 23, 1958. 

The 1956 amendment provided for the 

§ 4-112. Only pure liquors sold; others destroyed. 
Re-enacted by A. & J. R. 1956 (49) 1992. 

§ 4-113. Rejection of bid and resale. 

No liquors so sold shall be delivered within a period of five days after such sale, 
during which time the Tax Commission may, in its discretion, reject any bid and 
order the liquors resold until a satisfactory bid is had. But after confiscated liquors 
are offered for sale, after advertisement, as herein provided and no bids are made 
thereon, the same shall be destroyed by the proper officers. 

1945 (44) 337; 1956 (49) 1992. 

Effect of amendment. — The 1956 amend- 
ment eliminated requirement for advertise- 
ment to be on two different dates. 

§ 4-114. Disposition of proceeds of sale. 
Repealed by A. & J. R. 1956 (49) 1992. 

§ 4-115. Confiscation of chattels used in illegal transportation. 

Repealed by A. & J. R. 1956 (49) 1992. 

Cross reference. — See now §§ 4-115.1 to 
4-115.13. 

82 



§ 4-115.1 1960 Cumulative Supplement § 4-115.5 

§ 4-115.1. Sheriff to notify owner of registered vehicle seized under §§ 4-110.1 
and 4-110.2. 

Should such chattel seized under §§ 4-110.1 and 4-110.2 be a vehicle registered 
with the State Highway Department, the sheriff shall ascertain from the Depart- 
ment the name and address of the person in whose name such car is registered and 
shall notify such person by registered mail of such seizure ; should the chattel be 
a vehicle registered in another state, the sheriff shall request the Department to 
ascertain the name and address of the registered owner of such vehicle and shall 
notify such owner in like manner. 

19S6 (49) 1992. 

§ 4-115.2. Advertise seizure, forfeiture and sale of chattel. 

Immediately upon such notification being given by the sheriff or upon notice 
from the Department that the name of the registered owner cannot be ascertained, 
the sheriff shall give notice of the seizure made by advertisement thereof at least 
once per week for a period of three weeks in a paper of general circulation in the 
county. Such advertisement shall allege the seizure, describe the chattel, set forth 
in general terms the grounds of forfeiture of the seized property and the date upon 
which sale thereof is to be made, which date shall be not less than sixty days after 
seizure of the chattel. 

1956 (49) 1992. 

§ 4-115.3. Sell chattel at public auction if no notice of interest therein given. 

If, prior to the date set for such sale, no person claiming an interest in the chattel, 
as owner, lienor or otherwise, shall appear and give notice to the sheriff as required 
in § 4-115.6, the chattel shall be sold at public auction to the highest bidder. 

1956 (49) 1992. 

§ 4-115.4. Owner, certain debtors and lienors may sue for possession of chattel 
or value prior to sale; make sheriff party; solicitor to defend. 

Prior to such sale, the owner, all persons in any manner then indebted or liable 
for the purchase price of the chattel and any person having a lien thereon may bring 
an action to recover possession of the chattel or to recover the value of his interest 
therein from the proceeds of the sale thereof. In such a proceeding, the sheriff shall 
be made a party defendant. The solicitor of the circuit in which the seizure occurred 
shall defend all such suits. 

1956 (49) 1992. 

§ 4-115.5. Persons claiming seized chattels may obtain immediate possession. 

If the owner or other person claiming an interest in the seized chattel shall desire 
to obtain immediate possession thereof, the court may order delivery thereof to 
such claimant, upon execution by him of a bond payable to the sheriff having pos- 
session of the seized property, in an amount equal to the appraised value of the 
chattel, with security to be approved by the clerk of court. Such bond shall be con- 
ditioned to return such chattel at the time of the hearing of the proceeding referred 
to in § 4-1 15.4 or at such time as the court may order, and to pay the difference be- 
tween the appraised value of such chattel as of the time it shall have been so re- 
leased on bond and the appraised value thereof as of the time of its return; and 
conditioned further that, if the chattel be not returned as ordered, the bond shall 
stand in lieu of and be forfeited in the same manner as such chattel. Notwithstanding 
the provisions hereof, the court may, in its discretion, refuse to order such delivery 
of possession. 

1956 (49) 1992. 

83 



§ 4-115.6 Code of Laws of South Carouna § 4-115.10 

§ 4-115.6. Sheriff to stay sale on service of proceedings ; appraisal of chattel. 

Upon service of such proceeding upon the sheriff, he shall stay the sale, retain 
the chattel, have the chattel appraised as appraisals are provided for in attachment 
cases under § 10-927, transmit such appraisal to the court, keeping a copy in his 
oftice, and await the order of the court. 

1956 (49) 1992. 

§ 4-115.7. Proof required to recover chattel or value of interest therein. 

In any proceeding brought to recover possession of the chattel or to recover the 
value of an interest therein, no claim shall be allowed unless and until the claimant 
proves that (a) he has an interest in such chattel, as owner or otherwise, which he 
acquired in good faith, (b) he had at no time any knowledge or reason to believe 
that it was being or would be used in violation of the laws of this State relating to 
liquor and (c) if it appears that the interest asserted by the claimant was acquired 
after March 28 1956, and arises out of or is in any way subject to any contract or 
agreement under which any person having a record or reputation for violating laws 
of the United States or of this State relating to liquor, has a right with respect to 
such chattel, that, before such claimant acquired his interest, or such other person 
acquired his right under such contract or agreement, whichever occurred later, the 
claimant, his officer or agent was informed, in answer to his inquiry, at the head- 
quarters of the sheriff and police chief of the locality in which such other person 
acquired his right under such contract or agreement and of the locality in which 
such other person then resided, that such other person had no such record or 
reputation. 

1956 (49) 1992. 

§ 4-115.8. When restore chattel to owner. 

Should the claimant be the owner of the chattel in such proceeding and shall 
prevail therein, the court shall relieve the chattel from forfeiture and restore it to 
such owner. 

1956 (49) 1992. 

§ 4-115.9. When deliver chattel to lienors. 

Should the claimant be a lienor whose claim is allowed and whose interest is first 
in order of priority among such claims and is of an amount equal to or in excess of 
the appraised value of the chattel, the court shall relieve the chattel from forfeiture 
and order its return to him. If the claim is less than the appraised value of the 
chattel, the claimant may have the chattel delivered to him upon payment of the 
difference. Should the claims of two or more lienors be allowed, whose interests 
are not subject to any prior or intervening interests claimed and allowed in such 
proceedings, and are of a total amount equal to, or in excess of the appraised value 
of the chattel, the court shall, at the request of such claimants, order its return to 
such of the joint requesting claimants as are designated in such request. If the total 
amount of such claim be less than the appraised value of the chattel, the claimants 
may have the chattel delivered to such of them as are designated in the request, 
upon payment of the difference. 

1956 (49) 1992. 

§ 4-115.10. Sale and disposition of proceeds when delivery not demanded by 
claimant. 

Should delivery not be demanded by such claimant or claimants, the court shall 
order the sale of the chattel by the sheriff, out of the proceeds of which sale shall 
be paid, first, the claim or claims allowed in order of their priority as determined 
by the court ; second, the costs ; and the residue shall be paid to the municipality or 
to the county treasurer, as set forth in § 4-115.12. 

1956 (49) 1992. 

84 



§ 4-115.11 1960 Cumulative Supplement § 4-117.2 

§ 4-115.11. Sale and disposition of proceeds when claim not proven. 

Should no claim be proven and established as provided in § 4-115.7 the court 
shall order the sale of the chattel by the sheriff and the proceeds therefrom, after 
payment of costs, paid as provided in § 4-115.12. 

1956 (49) 1992. 

§ 4-115.12. Disposition of proceeds of sale when no claimant. 

When such chattel has been seized by municipal officers, the proceeds of sale 
under § 4-115.3, less the necessary expenses of advertising and storage, shall be 
paid to such municipality for its use, and otherwise the proceeds shall be paid to 
the county treasurer of the county where the chattel was seized. 

1956 (49) 1992. 

§ 4-115.13. Purchaser at sale to acquire complete title. 

Any person purchasing any chattel at a sale made by the sheriff under the provi- 
sions of §§ 4-115.1 to 4-115.12 shall acquire full and complete title to such chattel, 
free and clear of any prior claim, liens or encumbrances of any nature. 

1956 (49) 1992. 

§ 4-116. Procedure for confiscation of liquor or chattel. 

For the purpose of confiscating any such chattel or alcoholic liquors referred 
to in this chapter, the provisions of §§ 65-859 to 65-864 shall be followed as nearly 
as may be practicable. 

1945 (44) 337; 1955 (49) 329. 

Effect of amendment. — The 1955 amend- proceed and made the cited sections gen- 
ment eliminated direction to the sheriff to erally applicable. 

§ 4-117. Use of motor vehicles confiscated in Dorchester County. 

Editor's note. — Section 4-115 repealed by 
1956 p. 1992. See §§ 4-110.1 and 4-115.1 to 
4-115.13. 

§ 4-117.1. Use of motor vehicles confiscated in Calhoun County. 

Any automobile or motor vehicle seized by the sheriff of Calhoun County and 
confiscated in accordance with provisions of §§ 4-93, 4-115 and 4-116 may be used 
by the sheriff's office for the purpose of law enforcement but at no time shall the 
number of such automobiles so used exceed two. 

1956 (49) 2168. 

Editor's note. — Section 4-115 repealed by 
1956 p. 1992. See now §§ 4-110.1 and 4- 
115.1 to 4-115.13. 

§ 4-117.2. Use of motor vehicles confiscated in Bamberg County. 

Any automobile or motor vehicle seized by the sheriff of Bamberg County and 
confiscated in accordance with provisions of §§ 4-93, 4-110.1, 4-115.1 to 4-115.4, 
4-115.6 to 4-115.13 and 4-116 may be used by the sheriff's office for the purpose of 
law enforcement. If any automobile or other motor vehicle so confiscated and for- 
feited is not deemed suitable by the sheriff for the use of the sheriff's office then 
such automobile or motor vehicle shall be sold at public sale in accordance with the 
provisions of law governing such sale and the proceeds thereof shall be placed in a 
special fund with the county treasurer until such time as such funds shall become 
large enough to purchase an automobile or automobiles for the use of the sheriff's 
office in law enforcement. 

1957 (50) 332. 

85 



§ 4-118 Code of Laws of South Carolina § 4-121 

§ 4-118. Disposition of proceeds from fines, penalties, forfeitures and sales 
under certain sections. 

All proceeds of fines, penalties, forfeitures and sales arising out of the enforce- 
ment of §§ 4-205.1, 65-1270 and this article except §§ 4-96 and 4-100 shall be 
disposed of as follows, except as otherwise provided in said provisions. 

(1) When municipal officers are solely responsible for discovering the violation 
or producing the witnesses or the evidence upon which a conviction is had, the fines 
and bond forfeitures shall be retained by the municipality for municipal purposes, 
if collected by municipal courts or police officers. In cases sent to higher courts from 
municipal courts, and arising out of the activities of municipal officers, the county 
treasurer shall pay to the municipal treasurer one-half of the fines and bond for- 
feitures collected as the result of the proceedings in the higher court, upon voucher 
issued by the governing body of the county, after approval of a claim duly filed by 
the municipality, setting forth the facts of the case. 

(2) All proceeds of the sale of any chattel sold for violation of any of said pro- 
visions, when such chattel was originally seized by municipal authority, shall like- 
wise be paid to the municipal authority after deducting therefrom the cost and ex- 
pense of selling the chattel. 

(3) The proceeds of all other fines, forfeitures and sales shall be paid to the 
county treasurer for county purposes after payment of the costs and expenses. 

1956 (49) 1992. 

Cross reference. — See § 4-108 also for 
distribution of certain fines. 

§ 4-119. How seized chattels kept. 

The respective sheriffs shall safely store and keep any chattels delivered to them, 
in the jail yard, county shops, or on other county property, if such may be safely 
done, but shall in nowise incur any unnecessary expenses in connection with the 
storage of any chattel seized and delivered to them. 

1956 (49) 1992. 

§ 4-120. Sheriffs report seizures and results of sales to Commission. 

The sheriff of each county shall, upon seizure of or delivery to him of any chattel 
seized under the provisions of this chapter, report the seizure of such chattel to the 
Commission, setting forth in such report a description of the chattel, the name of 
the owner, if known, the grounds upon which the chattel has been seized, by whom 
it was seized, and the appraised value thereof, if such appraisal has been made. 
Each sheriff shall likewise, after the chattel has been sold or disposed of in ac- 
cordance with the provisions of §§ 4-115.1 to 4-115.12, make a report to the Com- 
mission, setting forth the amount of such sale, the purchaser, the disposition of the 
proceeds or whatever disposition has been made of the chattel by the sheriff pursuant 
to an order of court. The Commission shall establish a system for the filing and 
recording of such reports made to it. 

1956 (49) 1992. 

§ 4-121. Municipal ordinances prohibiting certain acts herein prohibited 
suspended. 

All ordinances of towns and cities of this State prohibiting the doing of any of 
the acts and things prohibited by § 65-1270 and this article except §§ 4-96 and 4-100 
are hereby suspended, it being hereby declared that the State has occupied the field 
of the subjects covered thereby. 

1956 (49) 1992. 

Town ordinance governing beer and wine beer and wine. Atty. Gen. Op., Oct. 11, 
not repealed by this section, since 1956 1958. 
Liquor Law did not relate to control of 

86 



§ 4-122 1960 Cumulative Supplement § 4-132 

§ 4-122. Trial jurisdiction of municipal courts and judges thereof. 

All municipal courts and those lawfully acting as judges thereof shall try and 
determine all cases involving any violation of § 65-1270 and this article except §§ 
4-96 and 4-100 occurring within the limits of the municipality where the penalties 
prescribed do not exceed a fine of one hundred dollars or imprisonment for thirty 
days, and such courts and judges shall have and are hereby vested with jurisdiction 
over such criminal cases the same as that had by magistrates, with the right and 
duty of sending such cases, occurring within the municipal limits but beyond their 
jurisdiction to try, to the higher courts. Any persons convicted hereunder in mu- 
nicipal courts shall be treated as municipal prisoners. 

1956 (49) 1992. 

§ 4-123. Enforcement within municipalities. 

Judicial and police officers of towns and cities of this State shall enforce the 
provisions of § 65-1270 and this article except §§ 4-96 and 4-100 within their 
respective jurisdictions. All municipal police officers are hereby given the power 
of constables to enforce said provisions in cases arising within the municipal limits 
and in addition, they shall have all powers to enforce such provisions as they 
have to enforce municipal ordinances. When in fresh and continuous pursuit of 
any suspect for violation of such provisions occurring within municipal limits, police 
officers may follow and arrest said suspect at any place in the State. 

19S6 (49) 1992. 

§ 4-124. Invalidity of certain sections. 

If any section or part of any section of §§ 4-12.1, 4-36, 4-43.1, 4-72.1, 4-205.1, 
65-1264, 65-1264.1, 65-1270, 65-1282.1, 65-1282.2, 65-1286.1, 65-1286.2 and 
this article, except §§ 4-96, 4-100, 4-108, 4-116, 4-117 and subdivision (4) of 
§ 4-107, is declared to be unconstitutional, the remainder of said provisions shall not 
be invalidated. 

1956 (49) 1841, 1992. 

Article 7. 
Shipment and Storage of Alcoholic Liquors. 
§ 4-131. Definitions. 
As used in this chapter : 

(1) The word "producer" shall mean a manufacturer, distiller, rectifier, blender 
or bottler of alcoholic liquors and shall include an importer of alcoholic liquors en- 
gaged in importing such alcoholic liquors into the United States. 

(2) "Registered producer" shall mean a producer as herein defined who is reg- 
istered with the Tax Commission pursuant to this article. 

(3) "Producer representative" shall mean a person who is a bona fide citizen 
of this State, who maintains his principal place of abode in this State and is regis- 
tered with the Commission pursuant to this article as the South Carolina repre- 
sentative of a registered producer. No person having a direct or indirect interest 
in a wholesale or retail liquor business in this State may qualify as a producer 
representative. 

1958 (50) 1721. 

§ 4-132. Exemptions. 

Any manufacturer licensed under the provisions of this chapter shall be exempt 
from the provisions of this article. 
1958 (50) 1721. 

87 



§ 4-133 Code of Laws of South Carolina § 4-139 

§ 4-133. Application of article. 

The provisions of this article shall be applicable notwithstanding any other pro- 
vision of law. 
1958 (SO) 1721. 

§ 4-134. Registered producers only may ship alcoholic liquors into State. 

No person other than a registered producer shall ship or move, or cause to be 
shipped or moved, any alcoholic liquors from a point outside this State to a point 
within the geographic limits of this State, and then only in accordance with the 
provisions of this article. 

1958 (50) 1721. 

§ 4-135. Application, fees and term of registration of producers. 

Every producer shall apply to the Commission, on such forms as the Commis- 
sion may prescribe, for a certificate of registration, which certificate must be ap- 
proved and issued prior to the shipment of any alcoholic liquors by such pro- 
ducer to a point within the geographic limits of this State. At the time such appli- 
cation is made, a fee of one hundred dollars shall be remitted to the Commission, 
but when a certificate is applied for on or after January first, the fee shall be fifty 
dollars. Every certificate shall be valid from the date of issue until June thirtieth, 
next succeeding. 

1958 (SO) 1721. 

§ 4-136. Producer representatives to be registered; application and fee. 

No person shall be qualified as a producer representative unless and until he 
has made application to the Commission for a certificate of registration and such 
certificate shall have been approved and issued. At the time such application is 
submitted, a fee of twenty-five dollars shall be paid to the Commission. The Com- 
mission shall provide appropriate forms for such application. 

1958 (50) 1721. 

§ 4-137. Brands of alcoholic liquors to be registered before importing. 

No alcoholic liquors shall be shipped or moved into this State unless and until 
each brand thereof is duly registered with the Commission in accordance with the 
provisions of this article and its regulations promulgated thereunder. Every regis- 
tered producer shall prior to the shipment of any alcoholic liquors to a point within 
the geographic limits of this State obtain from the Commission a certificate of 
registration for each brand of alcoholic liquors intended to be shipped to a point 
within the geographic limits of this State. 

1958 (50) 1721. 

§ 4-138. Term, fee and application forms for registration of brands. 

A certificate of registration of brands of alcoholic liquors shall be valid from the 
date of issue to June thirtieth, next succeeding. At the same time that application 
for such a certificate is submitted, a fee of ten dollars shall be paid to the Com- 
mission for each brand except for the first five brands of a registered producer. 
The Commission shall provide appropriate forms for application for such certificate. 

1958 (50) 1721. 

§ 4-139. Applicants for certificates or licenses to permit examination of rec- 
ords. 

In all cases the applicant for a certificate or license required by this article, as 
a condition precedent to the issue of such certificate or license, must certify that 
the Commission may within statutory limitations audit and examine the books, 



§ 4-140 1960 Cumulative Supplement § 4-144 

records, papers and memoranda of the applicant, with respect to the administra- 
tion and enforcement of laws administered by it. 
19S8 (SO) 1721. 

§ 4-140. Commission to issue certificates or licenses or reject applications. 

The Commission, in its discretion, upon due consideration of the information 
contained in applications for certificates and licenses provided for in this article, 
shall issue the certificate or license applied for or reject the application therefor. 

1958 (50) 1721. 

§ 4-141. Suspension or revocation of certificates and licenses. 

Any certificate of registration or license provided by this article may be suspended 
or revoked by the Commission upon a showing of any violation of law or of any 
regulation of the Commission. 

1958 (50) 1721. 

§ 4-142. Information producers and representatives to furnish Commission 
on shipments into State. 

Prior to shipment into the geographic boundaries of this State, the registered 
producer shall mail to the Commission by first class mail a correct and complete in- 
voice, showing in detail the items in such shipment by quantity, type, brand, size, 
price, the point of origin and the point of destination. Also prior to or at the time 
of shipment, a copy of the bill of lading shall be forwarded to the Commission by 
first class mail. Immediately upon acceptance of delivery of such shipment by the 
producer's representative, he shall furnish the Commission with a copy of the in- 
voice covering such shipment with endorsement thereon showing the date, time and 
place delivery was accepted. 

1958 (50) 1721. 

§ 4-143. Information producer representatives to furnish for shipments origi- 
nating within State. 

Prior to shipment to any wholesaler in this State or to any point without this 
State, the producer's representative shall mail to the Commission a correct and com- 
plete copy of the invoice covering such shipment, showing the name and address 
of the invoice covering such shipment, showing the name and address of the con- 
signee and, in detail, the items in such shipment by quantity, type, brand, size 
and price. On all shipments to a point without this State, the producer's repre- 
sentative shall at the time of shipment mail to the Commission a copy of the bill 
of lading. 

1958 (50) 1721. 

§ 4-144. Carriers; certificates required to ship within State. 

Alcoholic liquors shall be shipped or moved from a point without this State to 
a point within the geographic limits of this State only by railroad companies, 
steamship companies, express companies or truck companies, authorized to do 
business in this State as common carriers by The Public Service Commission. They 
shall be shipped or moved only to the registered producer in care of the producer 
representative who is registered to handle the property of the registered producer 
originating the shipment. The shipment of alcoholic liquors shall be either stored 
in a duly licensed warehouse of the registered producer or, after delivery to the 
producer's representative is complete, may then be shipped by common carriers 
aforementioned, to a duly licensed wholesaler. Shipments of alcoholic liquors from 
a licensed producer's warehouse to a licensed South Carolina wholesaler may be 
made in a vehicle owned and operated by such wholesaler. Should alcoholic liquors 
be stored in the warehouse of a registered producer, or after delivery to the pro- 






§ 4-145 Code of Laws of South Carolina § 4-150 

ducer's representative is complete, they may be shipped to a duly licensed whole- 
saler or to a point without this State. Prior to any such shipment or transfer, the 
producer's representative shall apply to the Commission, on forms prescribed by 
the Commission, for permission to ship or transfer such alcoholic liquors and has 
received a certificate of approval of such shipment or transfer. 
1958 (50) 1721. 

§ 4-145. Storage of alcoholic liquors by registered producers; warehouse li- 
cense and bond. 

A registered producer may store alcoholic liquors only in a warehouse of such 
producer duly licensed by the Commission. Application for license to operate a 
warehouse shall be filed on such forms as the Commission may prescribe. At the 
same time application for a warehouse license is submitted, a fee of two hundred 
dollars shall be paid to the Commission but when application is made on or after 
January first, the fee shall be one hundred dollars. A warehouse license shall be 
valid from the date of issue until June thirtieth, next succeeding. The Commis- 
sion shall require sufficient bond with respect to a licensed warehouse to insure 
proper handling of liquors stored therein. Provisions of § 4-9 shall be inapplicable 
with respect to warehouses licensed under the provisions of this article. 

1958 (50) 1721. 

§ 4-146. Alcoholic liquors shipped illegally contraband ; seizure and sale. 

Any alcoholic liquors shipped or moved into the geographic limits of this State 
in violation of any provision of this article, are hereby declared contraband and may 
be seized and sold as provided by §§ 4-111 and 4.111.1. 

1958 (50) 1721. 

§ 4-147. Administration and enforcement. 

The Commission shall administer and enforce the provisions of this article. 
1958 (50) 1721. 

§ 4-148. Rules and regulations. 

The Commission may make such rules and regulations not inconsistent with 
law deemed necessary for the proper administration and enforcement of this 
article. Such rules and regulations shall have the full force and effect of law. 

1958 (50) 1721. 

§ 4-149. Deposit of receipts. 

All monies received by the Commission under the provisions of this article shall 
be deposited with the State Treasurer to the credit of the General Fund of the 
State. 

1958 (50) 1721. 

§ 4-150. Invalidity. 

Should any section, subsection or portion of this article be held void, it shall not 
affect the remaining sections, subsections or portions thereof. 
1958 (50) 1721. 



90 



§ 4-205.1 



1960 Cumulative Supplement 



CHAPTER 2. 
Beer, Ale, Porter and Wink. 



Article 1. 

General Provisions and Certain Offenses, 

Sec. 

4-205.1. Same; beer or wine found at any 
place selling or delivering such 
on Sunday or Monday before 
daylight contraband; disposition. 

4-207. Rules and regulations for enforce- 
ment. 

Article 2. 
Permits, etc., for Sales. 

4-211. Permit for selling required. 

4-212. Qualifications for permit. 

4-212.1. Consideration of application when 
location without a municipality 
but within five miles of a State 



Sec. 

prohibiting sale of beer or wine 
4-220.1. Certificate of approval for beer 
manufacturers and importers; 
wholesalers not purchase from 
without. 

Article 2.1. 
Provisions Affecting Beer Only. 
4-220.101. Establishments selling beer on 
draft at retail to be approved 
by State Board of Health; 
post certificate of approval and 
also permit to sell. 
4-220.102. Penalties. 

4-220.103. Same; revoke or suspend retail 
permit. 



Article 1. 

General Provisions and Certain Offenses. 

§ 4-205.1. Same; beer or wine found at any place selling or delivering such 
on Sunday or Monday before daylight contraband; disposition. 

If any beer or wine is sold or delivered to anyone from any place of business 
between the hours of twelve o'clock Saturday night and sunrise Monday morning, 
all beer and wine found within such place of business is hereby declared contraband 
and shall be seized by any peace officer and handled as contraband liquor. 

1956 (49) 1992. 



Cross reference. — See §§ 4-111 and 4- 
411.1 for handling of contraband liquor; for 
effect of invalidity of this section, see 
§ 4-124. 

This section supplements § 4-204 by 
prescribing additional penalty of forfeiture. 



Atty. Gen. Op.. No. 521. dated July 6. 1956 
Confiscation is only punishment for de- 
livery on Sunday in violation of this sec- 
tion, no penalty being prescribed for simple 
delivery of wine or beer on Sunday. Atty. 
Gen. Op., Aug. 19, 1958. 



§ 4-207. Rules and regulations for enforcement. 

The Commission shall make and promulgate such rules and regulations as are 
necessary to carry out enforcement of the beer and wine laws in respect to appli- 
cation for and issuing of beer licenses, permits or brewers certificates of approval 
and also make any rules necessary concerning the manner of sale, distribution, 
promotion and shipment of beer into and within the State. These rules and regu- 
lations shall have full force and effect of law. The Commission shall revoke or 
suspend the license, permit or brewer certificate of approval of any person for the 
violation of any rule or regulation which may be enacted, or invoke a penalty, not 
to exceed the sum of one hundred dollars, for each violation. 

1960 (51) 1779 [1892]. 

Article 2. 

Permits, etc., jor Sales. 
§ 4-211. Permit for selling required. 

Every person engaged in the business of selling beer, ale, porter, wine or any 
beverage which has been declared to be non-alcoholic and non-intoxicating under 
the provisions of § 4-201 shall apply to the Commission for a permit to sell such 
beverages. Retail dealers shall pay to the Commission forty dollars per annum for 
retail permits, and wholesale dealers shall pay to the Commission four hundred 
dollars per annum for wholesale permits. But retail permits may be issued by the 

Q1 Volume 1 



§ 4-212 Code of Laws of South Carolina § 4-215 

Commission for the sale of beer for consumption off of the premises of the retailer 
for five dollars per annum. Permits shall be issued for the State's fiscal year upon 
the payment of the fees provided herein for a full year. Separate permits shall be 
required for each separate place of business. 

1942 Code § 2SS7-S; 1935 (39) 576; 1938 (40) 1752; 1951 (47) 546; 1955 (49) 329. 

Editor's note. — See § 4-212.1 {or proviso Beer permit may not be issued to cor- 

added to this section by 1954 p. 1702. poration, but may be issued to officer, ser- 

Effect of amendment. — The amendment vant or agent thereof having qualifications 
increased the permit fee for retailers to of § 4-212. Atty. Gen. Op., Apr. 25, 1959. 
forty dollars from twenty-five dollars. 

§ 4-212. Qualifications for permit. 

No permit authorizing the sale of beer or wine shall be issued unless : 

(1) The applicant and any agent, employee or servant of the applicant to be 
employed on the licensed premises shall be of good moral character; 

(2) The applicant shall be a citizen of this State for at least one year prior to the 
date of application and shall have maintained therein his principal place of abode for 
at least one year prior to the date of application or in case of a wholesale applicant 
must have been previously licensed under the laws of this State ; 

(3) The applicant has not within two years prior to the date of application had 
revoked any beer and wine permit issued to him; 

(4) The applicant shall be 21 years of age or over; and 

(5) The location of the proposed place of business of applicant shall in the 
opinion of the Tax Commission be a proper one. 

1942 (42) 1739; 1954 (48) 1702; 1955 (49) 268. 

Effect of amendments. — The 1954 Citizenship of applicant is a question of 

amendment included in item (1) agents, fact. Atty. Gen. Op., Apr. 19, 1954. 

employees and servants, added item (2), Beer permit may not be issued to cor- 

eliminated alcoholic liquors from item (3) poration, but may be issued to officer, serv- 

and added item (4). ant or agent thereof having qualifications 

The 1955 amendment eliminated appli- prescribed by this section. Atty. Gen. Op., 

cation of item (2) to agents and employees Apr. 25, 1959. 
and added provision therein as to wholesale 
applicant. 

§ 4-212.1. Consideration of application when location without a municipality 
but within five miles of a State prohibiting sale of beer or wine. 

In considering an application for a permit for the sale of beer or wine at a 
location within five miles of a political subdivision of a foreign State in which the 
sale of beer or wine is prohibited, the Commission shall in addition to the factors 
otherwise required to be considered take into account (a) the proximity of the lo- 
cation to the prohibited area, (b) the likelihood that large crowds will gather from 
time to time with attendant breaches of the peace, (c) the requirement of increased 
law enforcement officers (d) and any other factor which in its judgment should 
rightfully be considered before issuing the permit. These special considerations shall 
not apply where the application is made with respect to a location within the cor- 
porate limits of a municipality. 

1954 (48) 1702. 

The provisions of this section relating require consideration by commission. Atty. 
to application for permit within five mile Gen. Op., Apr. 19, 1954. 
area hav« no mandatory feature but merely 

§ 4-214.3. Revocation of permits. 

Cross references. — As to certain convic- violating health regulations revoking per- 
sons revoking permits, see § 4-107.5; as to mit, see § 4-220.103. 

§ 4-215. Acts prohibited on licensed premises. 

Sale of beer to intoxicated person does a licensed dealer to an intoxicated person 
not create nuisance. — The sale of beer by is in violation of statute, but that act alone 

92 



§ 4-217 1960 Cumulative Supplement § 4-305 

does not create a public nuisance at the Applied in South Carolina Tax Comm. 

dealer's place of business. State v. Rack- v. McLain, 218 S. C. 285, 62 S. E. 2d 505 
ley, 221 S. C. 49, 68 S. E. 2d 873 (1952). (1950). 

§ 4-217. Appeal from order of revocation or suspension. 

Applied in South Carolina Tax Comm. 
v. McLain, 218 S. C. 285, 62 S. E. 2d 505 
(1950). 

§ 4-220.1. Certificate of approval for beer manufacturers and importers; 
wholesalers not purchase from without. 
Beer wholesalers shall only purchase beer or ale from manufacturers or importers 
who hold a certificate of approval issued by the Commission to be purchased at 
an annual cost of one hundred dollars. All certificates shall expire on June 30th 
following the date of issue. 
1960 (51) 1779 [1892]. 

Article 2.1. 

Provisions Affecting Beer Only. 

§ 4-220.101. Establishments selling beer on draft at retail to be approved by 
State Board of Health; post certificate of approval and also 
permit to sell. 

No person holding a retail permit to sell beer, ale, porter and other similar malt 
or fermented beverages, issued by the Tax Commission, shall sell same on draft, on 
tap or from kegs or other containers on the premises described in said permit, 
unless approved by the rules and regulations of the State Board of Health govern- 
ing eating and drinking establishments and other retail food establishments. Both 
the permit issued by the Commission and the certificate of approval issued by the 
Board shall be conspicuously posted on the premises. 

1955 (49) 329. 

§ 4-220.102. Penalties. 

Any person violating any of the provisions of § 4-220.101 shall be guilty of a 
misdemeanor and, upon conviction, shall be subject to a fine of not less than ten 
dollars nor more than one hundred dollars or imprisonment not less than ten days 
nor more than thirty days at the discretion of the court. 

1955 (49) 329. 

§ 4-220.103. Same; revoke or suspend retail permit. 

In addition to the above penalty, the Commission may revoke or suspend any 
retail permit for any violation of § 4-220.101. 
1955 (49) 329 

CHAPTER 3. 
Alcohol. 

Article 1. Sec. 

Sale and Use by Druggists. 4-307. Statement by purchaser. 

Sec. 4-307.1. Druggist retain prescriptions and 
4-305. When and how prescriptions may be statements. 

filled. 4-308. Statements to be recorded. 

Article 1. 

Sale and Use by Druggists. 

§ 4-305. When and how prescriptions may be filled. 

No prescription shall be filled except upon the day upon which it is issued or the 
following day and no more than one-half pint of alcohol shall be sold and delivered 
on any one prescription. When such prescription is filled it shall not be refilled but 

93 



§ 4-307 Code of Laws of South Carolina § 4-308 

shall be delivered to the druggist filling the same. No druggist who is also a 
practicing physician shall fill his own prescription for pure alcohol nor shall it be 
filled at any drug store in which such physician is financially interested. The de- 
livery of such alcohol sold under such prescription shall be made only directly to 
the person for whom such prescription is issued, to the physician, or to some one 
authorized by the physician or in case of a minor to his parent, guardian, physician 
or some one authorized by such physician. 

1942 Code § 1867; 1932 Code § 1833; Cr. C. '22 § 825; Cr. C. '12 § 798; 1909 (26) 60; 
1960 (51) 1749. 

Effect of amendment. — The 1960 amend- 
ment eliminated filing of prescriptions in the 
office of the clerk of court. 

§ 4-307. Statement by purchaser. 

Any person desiring to purchase alcohol for any of the purposes set out in 
§ 4-306 shall sign a written printed statement giving his name, residence, occu- 
pation and the purpose for which he intends to use such alcohol and he shall certify 
that the alcohol is purchased in good faith for such purpose and no other. 

1942 Code § 1869; 1932 Code § 1835; Cr. C. '22 § 827; Cr. C. '12 § 800; 1909 (26) 60; 
1960 (51) 1749. 

Editor's note. — For provisions added to ment eliminated filing of statement by 
this section by 1960 p. 1749, see § 4-307.1. druggist monthly with the clerk of court 

Effect of amendment. — The 1960 amend- and added § 4-307.1. See editor's note above. 

§ 4-307.1. Druggist retain prescriptions and statements. 

The druggist shall retain such prescriptions and statements for inspection as re- 
quired by law for the retention of the prescription of narcotics and other drugs on 
May 16 1960. 

1960 (51) 1749. 

§ 4-308. Statements to be recorded. 

All statements required by this article to be filed in the office of the clerk of 
court shall be recorded and properly indexed by him in a book kept for that pur- 
pose which shall at all times be open for public inspection and a certified copy 
of such record, or the original statement, with the certificate of the clerk of court 
indorsed thereon showing that it has been recorded, shall be prima facie evidence 
of the facts recited therein. For making such record the clerk of the court shall be 
entitled to charge and collect for each statement a fee of fifteen cents, which shall be 
paid by the party filing the same. 

1942' Code § 1870; 1932 Code § 1837; Cr. C. '22 § 829; Cr. C. '12 § 802; 1909 (26) 60; 
1960 (51) 1749. 

Effect of amendment. — The 1960 amend- 
ment eliminated recording of prescriptions. 

CHAPTER 4. 

Nuisances, Enforcement and Other Miscellaneous Provisions. 

Article 2. Article 3. 

Enforcement and Other General Local Enforcement Provisions. 

Provisions. Sec. 

Sec. 4-419.21. Reports of violations of liquor 

4-411. Sale of alcoholic liquors and bever- laws to clerk of court in Ander- 

ages not properly branded; con- son County. 

fiscation. 4-420. Reports of illegal alcoholic liquors 

4-411.1. Sale of beverages having alcoholic seized by rural police in Chester 

content which resemble soft, fruit County; destruction, 
or vegetable drink; seizure and 
sale. 

94 



§ 4-401 1960 Cumulative Supplement § 4-411.1 

Article 1. 
Nuisances. 

§ 4-401. Unlawful sale, etc., of alcoholic liquors a common nuisance. 

This article valid. — Legislature has power It was not repealed by the Alcoholic 

to declare places where liquor sold con- Beverage Control Act. — The Alcoholic 

trary to law common nuisances, procedure Beverage Control Act [1945 (44) 337], 

to abate such nuisances may be summary codified as Chapter 1 of this Title, did not 

in nature, and fact that no provision made operate to repeal this section by implica- 

for trial by jury does not render such tion. State v. McCrae, 222 S. C. 194, 72 S. 

legislation unconstitutional. Stone v. Lang- E. 2d 541 (1952). 
ley. 236 S. C. 263, 113 S. E. 2d 786 (1960). The history of this section shows it to 

This section is not void for uncertainty, be independent of other acts, except the 

but clearly denominates the doing of the penaltv which is provided in § 4-417. State 

enumerated acts as unlawful, with the v. McCrae, 222 S. C. 194, 72 S. E. 2d 451 

penalty being provided in § 4-417. State (1952). 
v. McCrae, 222 S. C. 194, 72 S. E. 2d 451 
(1952). 

§ 4-402. Resorts for drinking declared nuisance. 

Stated in Stone v. Langley, 236 S. C. Applied in State v. McCrae, 222 S. C. 

263, 113 S. E. 2d 786 (1960). 194, 72 S. E. 2d 451 (1952). 

§ 4-403. Warrant for arrest and search warrant; seizure. 

Stated in Stone v. Langley, 236 S. C. Cited in State v. McCrae, 222 S. C. 194, 

263, 113 S. E. 2d 786 (1960). 72 S. E. 2d 451 (1952). 

§ 4-405. Injunction. 

Injunction must relate to place of selling liquor independently of place where 
nuisance. — A person charged with main- nuisance exists. Stone v. Langley, 236 S. C. 
taining nuisance may not be enjoined from 263, 113 S. E. 2d 786 (1960). 

§ 4-406. Contempt proceedings for violation of order. 

Punishment for violating restraining Even if restraining order was broader than 

order properly imposed under this section statute permitted, it was incumbent upon 

and not under general statute in § 15-231.1. defendant at least to obey valid part until 

Stone v. Langley, 236 S. C. 263, 113 S. E. it was set aside or revoked. Stone v. 

2d 786 (1960). Langley, 236 S. C. 263, 113 S. E. 2d 

Restraining order must be obeyed. — 786 (1960). 

Article 2. 

Enforcement and Other General Provisions. 

§ 4-411. Sale of alcoholic liquors and heverages not properly branded; 
confiscation. 

It shall be unlawful for any person to sell or otherwise introduce into commerce 
any alcoholic liquors or nonalcoholic and nonintoxicating beverages, legalized under 
the provisions of this Title, unless labeled in accordance with the provisions of the 
Federal Alcoholic Administration Act and rules and regulations promulgated there- 
under. Any violation of the provisions of this section shall subject the alcoholic 
liquors or nonalcoholic and nonintoxicating beverages found in the possession of 
any person so violating this section to seizure, confiscation and sale, as is provided 
in §§ 4-111 and 4-111.1. 

1942 Code § 1860; 1935 (39) 325; 1939 (41) 303; 1956 (49) 1992. 

Effect of amendment. — The 1956 amend- 
ment added additional reference, § 4-111.1. 

§ 4-411.1. Sale of beverages having alcoholic content which resemble soft, 

fruit or vegetable drink; seizure and sale. 

It shall be unlawful for any person, with or without a beer or wine permit, to 

sell or to offer for sale any beverage, generally used as and for a soft drink rather 

than as a medicine or for cooking purposes, having any alcoholic content, when 

95 



§ 4-417 Code of Laws of South Carolina § 5-2 

such beverage resembles in color and general appearances a vegetable drink, a fruit 
drink or a soft drink. Violations of this section shall be a misdemeanor and shall 
be punishable in the discretion of the court. In addition, such drinks are hereby 
declared contraband and shall be seized by any duly authorized agent of the Tax 
Commission or by any peace officer and shall be disposed of as provided by § 4-111.1 
for the disposition of illegal alcoholic liquors. 
1956 (49) 1841. 

§ 4-417. Punishment for violations of law in cases not specifically prescribed. 

This section provides the penalty for 401. State v. McCrae, 222 S. C. 194, 72 S. 
the acts denominated as unlawful in § 4- E. 2d 451 (1952). 

Article 3. 
Local Enforcement Provisions. 

§ 4-419.21. Reports of violations of liquor laws to clerk of court in Anderson 
County. 
Provisions of A. & J. R. 1958 (50) 2086 make up this section. 

§ 4-420. Reports of illegal alcoholic liquors seized by rural police in Chester 
County; destruction. 
Amended by § 11 of A. & J. R. 1955 (49) 612. 



Title 5. 

Amusements and Athletic Contests.* 

Chap. 1. Circuses, Carnivals and Other Travelling Shows, §§ 5-2 to 5-10. 
2. Motion Pictures, Etc., §§ 5-103 to 5-110. 
7. Dance Halls, Slot and Music Machines, Etc., §§ 5-624.1 to 5-681.4. 

CHAPTER 1. 

Circuses, Carnivals and Other Traveling Shows.** 

Sec. Sec. 

5-2. Same; certain local exceptions. 5-8.3. Same; Charleston County. 

5-6. Same; Darlington County. 5-9.1. Same; Union County. 

5-7.1. Carnivals and traveling shows in 5-10. [Repealed.] 
Florence County. 

§ 5-2. Same ; certain local exceptions. 

The provisions of § 5-1 shall not apply within the limits of Aiken, Allendale, 
Barnwell, Berkeley, Calhoun, Chester, Clarendon, Florence, Greenville, Green- 
wood, Hampton, Marlboro, Newberry, Orangeburg, Pickens, Richland, Saluda, 
Spartanburg and Sumter Counties. 

Carnivals and tent shows, shall be permitted to exhibit in said counties with- 
out license when they exhibit under the auspices of a regularly established post 
of the American Legion in the county in which such exhibitions are had. In Sumter 
County carnivals and tent shows shall also be permitted to exhibit without license 
when they exhibit under the auspices of a regularly established post of the Veterans 
of Foreign Wars or Disabled American Veterans. Provided, that the arrangement 
between any such carnival or tent show and the American Legion, Veterans of 

* As to bathing near fishing pier on Atlantic Coast in Horry County being prohibited, 
see § 23-1004. 
•* As to tax and license fees, see §§ 65-691 et seq. 

96 



§ 5-6 1960 Cumulative Supplement § 5-9.1 

Foreign Wars or Disabled American Veterans post under whose auspices it 
exhibits shall have been made at least three days before the commencement of any 
such exhibition. 

The Aiken County Fair Association shall have the exclusive right to conduct 
a fair and/or carnival in Aiken County during the period from September fifteenth 
to October fifteenth of each year. But this exclusive right shall apply only to the 
city of Aiken and an area of three miles surrounding said city. 

Nothing herein contained shall be construed to relieve any person from the 
payment of the license tax on admissions imposed by article 7 of chapter 10 of 
Title 65. 

1942 Code § 6333; 1932 Code § 6333; Civ. C. '22 §§ 5177, 5178, 5181-5186; Cr. C. '22 
|§ 247-251; 1917 (30) 545; 1918 (30) 764; 1919 (31) 150; 1920 (31) 726, 752. 927; 1921 
(32) 100, 224, 256, 331; 1922 (32) 906; 1929 (36) 57; 1930 (36) 1276; 1934 (38) 1484; 1935 
(39) 266, 388, 421; 1937 (40) 241, 292; 1939 (41) 532; 1945 (44) 26; 1947 (45) 70, 131, 
281; 1948 (45) 1632; 1952 (47) 2075; 1955 (49) 77. 

Effect of amendments. — The 1952 amend- following proviso to include Veterans of 
ment added the third paragraph. Foreign Wars and Disabled American Vet- 

The 1955 amendment added second sen- erans posts. 
tence in second paragraph and enlarged the 

§ 5-6. Same ; Darlington Comity. 
* * * 

The Hartsville Boy Scout district may sponsor one circus annually. 

1942 Code § 6333; 1932 Code § 6333; Civ. C. '22 §§ 5177, 5178, 5181-5186; Cr. C. '22 
§§ 247-251; 1917 (30) 545; 1918 (30) 764; 1919 (31) 150; 1920 (31) 726, 752, 927; 1921 
(32) 100, 224, 256, 331; 1922 (32) 906; 1929 (36) 57; 1930 (36) 1276; 1934 (38) 1484; 193S 
(39) 266, 388, 421; 1937 (40) 241, 292; 1939 (41) 532; 1945 (44) 26; 1947 (45) 70, 131. 281; 
1948 (45) 1632; 1954 (48) 1787. 

Editor's note. — It appears that the above Effect of amendment. — A mendment 

amendment is surplusage in view of § 5-1 added above sentence. Section otherwise 
excepting circuses. unchanged. 

§ 5-7.1. Carnivals and traveling shows in Florence Comity. 

The provisions of § 5-1 shall not apply to any carnival or traveling show exhibit- 
ing in Florence County sponsored by the Veterans of Foreign Wars. 
1955 (49) 138. 

§ 5-8.3. Same; Charleston County. 

In Charleston County no circus, carnival or traveling show of any kind shall 
exhibit or do business under any auspices or condition for a period of thirty days 
prior to and during the operation of the Coastal Carolina Fair sponsored by the 
Exchange Club Fair of Charleston, Inc., or its successors, unless such circus, car- 
nival or traveling show shall first obtain the written consent of the board of 
directors of the fair or its successors. Any person in charge of or in any way op- 
erating or assisting in operating any such circus, carnival or traveling show in 
violation of this section shall be guilty of a misdemeanor and shall be fined not 
more than one thousand dollars nor less than five hundred dollars or imprisoned 
for not more than six months nor less than three months, or both, in the discre- 
tion of the court, and each day on which an exhibition is made or business is done 
in violation of this section shall be considered a separate offense. 

1958 (50) 1560. 

§ 5-9.1. Same; Union Comity. 

Any circus, carnival or other such admission charging show or amusement 
that usually exhibits under a tent or outdoors may exhibit in Union County with- 
out payment of any license fee or charge, if such exhibition is made under the 

97 



§ 5-10 Code of Laws of South Carolina § 5-103 

auspices or sponsorship of a local eleemosynary association or organization and 
pursuant to a contract requiring such association or organization to pay the li- 
cense for such exhibition and if such exhibition is first approved as to time and 
place by the executive secretary and treasurer of the Union County Fair Associa- 
tion. 

1952 (47) 2838. 

§ 5-10. Same; Union County. 

Repealed by A. & J. R. 1952 (47) 2838. 
Crosa reference. — See now § 5-9.1. 

CHAPTER 2. 
Motion Picturf.s, etc. 

Sec. Sec. 

5-103. Motion pictures, athletic sports and 5-110. Exhibition of motion pictures on 
musical concerts on Sunday in Sunday in Florence County. 

certain counties, cities and re- 
sorts. 

§ 6-103. Motion pictures, athletic sports and musical concerts on Sunday in 
certain counties, cities and resorts. 

It shall be lawful to exhibit publicly motion pictures, athletic sports and musical 
concerts and to engage therein from and after two o'clock P. M., on Sunday (a) 
in counties containing a city having a population of more than sixty-two thousand, 
(b) in cities from sixteen thousand to sixteen thousand one hundred in population 
according to the official United States census for 1940, (c) in counties containing 
a city having an exact population of five thousand seven hundred forty-seven 
according to the 1940 official United States census, (d) in cities with a population 
from six thousand two hundred and twenty-five to six thousand two hundred and 
fifty according to the official United States census for 1940, and (e) in incorporated 
seashore resorts, if the exhibition of such motion pictures and engagements in 
athletic sports is lawful on other days in the week ; provided that no such amuse- 
ments shall be exhibited or engaged in between the hours of seven P. M. and nine 
P. M. on Sundays. 

In incorporated towns and cities a special permit must first be obtained from 
the governing body. Outside of incorporated towns and cities a special permit 
must first be obtained from the governing body of the county except in a county 
containing a city having an exact population of five thousand seven hundred forty- 
Eeven according to the 1940 official United States census. 

Any person exhibiting publicly motion pictures, athletic sports or musical con- 
certs in any such county or city on Sunday during any hour not herein authorized 
or without first obtaining the special permit herein required shall be guilty of 
a misdemeanor and upon conviction thereof shall be punished by a fine of not 
more than one hundred dollars or imprisonment of not more than thirty days. 

1947 (45) 107; 1949 (46) 20, 127; 1951 (47) 526: 1952 (47) 1930. 

Effect of amendment.— The amendment S. C. , 115 S. E. 2d 273 (1960). 
(1) tied the cities referred to in phrase (b) Public exhibition of motion pictures on 

of the section to the 1940 census, (2) Sunday unlawful in Marlboro County and 
added the cities referred to in phrase (d) city of Bennettsville. Atty. Gen. Op., Mar. 
and (3) made the penalty clause refer to 10, 1954. 

"any hours not herein authorized" where This section does not apply to Spartan- 

it formerly read "earlier than two o'clock burg County. Atty. Gen. Op., May 2, 1959. 
P. M." Movies during prescribed hours lawful 

Cited in Rishop v. Hanna, 218 S. C. 474, in Kershaw County. Atty. Gen. Op., Jun. 
63 S. E. 2d 308, 24 A. L. R. 2d 808 (1951); 26, 1959. 
Carolina Amusement Co. v. Martin, 

98 



§ 5-104 1960 Cumulative Supplement § 5-624.1 

§ 5-104. Same; in other counties, cities and towns. 

Cited in Bishop v. Hanna, 218 S. C. 474, This section is no longer effective, hav- 

63 S. E. 2d 308, 24 A. L. R. 2d SOS (1951); ing expired six months after World War 

Carolina Amusement Co. v. Martin, II. Atty. Gen. Op., Mar. 10, 1954. 
S. C. , 115 S. E. 2d 273 (1960). 

§ 5-110. Exhibition of motion pictures on Sunday in Florence County. 

Provisions of A. & J. R. 1955 (49) 979 as amended by A. & J. R. 1957 (50) 
1015 make up this section. 

CHAPTER 7. 

Dance Halls, Slot and Music Machines, etc. 

Article 3. Article 4.4. 

Slot and Music Machines Generally. Music Machines, etc., in Greenwood 

Sec. County. 

5-o24.1. Persons under eighteen years play- Sec. 

ing pinball machines. 5-638.31. Operation of machine restricted. 

5-624.2. Permitting persons under eighteen 5-63S.32. Penalties. 

years to play pinball machines. Article 6. 

5-624.3. Penalties to violate §§ 5-624.1 and Licenses for Coin Operated Devices, Bil- 

5-624.2. liard Tables, Bowling Alleys and 

5-625. Hours of operation of music ma- Skating Rinks. 

chines outside of municipalities 5-660. License to use coin operated ma- 
in certain counties. chines. 

Article 3.1. S-660.1, 5-660.2. [Repealed.] 

Music Machines, etc., in Horry County. 5-661. [Repealed.] 

5-627.1. Operation of such machines out- 5-662. Application for license. 

side of municipalities restricted. 5~-664. License to be attached to machine. 

5-627.2. Penalties. 5-676. Additional local licenses. 

Article 4.1. 5-679. Invalidity of §§ 5-660, 5-662 and 

Music Machines, etc., in Marion and 5-664. 

Marlboro Counties. Article 7. 

5-636. Operation of machine restricted. Pinball Machines in Spartanburg County. 

5-637. Penalty. 5-681. Minors not to play pinball machines. 

Article 4.2. 5-681.1. Owners and operators not permit 

Music Machines, etc., in Chesterfield minors to play. 

County. 5-681.2. Penalties to violate § 5-681 or 

5-638. Operation of machine restricted. § 5-681.1. 

5-638.1. Penalties. 5-681.3. Pay off for free games won on 

Article 4.3. pinball machines prohibited. 

Music Machines, etc., in Dorchester 5-681.4. Penalties to violate § 5-681.3. 
County. 
5-638.20. Operation of machine restricted. 
5-638.21. Penalties. 

Article 3. 

Slot and Music Machines Generally. 

§ 5-621. Slot machines, etc., unlawful; exceptions. 

Giving player, of non-payout pin table Kail gum vending machine which re- 

with free play features, cash for free games leases at irregular intervals a striped ball 

converts table into gambling machine viola- redeemable for 5c in trade, violative of this 

Iative of this section. Atty. Gen. Op. Dec. section. Atty. Gen. Op., Apr. 14, 1959. 
8, 1955. 

§ 5-624.1. Persons under eighteen years playing pinball machines. 

It shall be unlawful for any minor under the age of eighteen to play a pinball 
machine. 

1959 (51) 320. 

Meaning of "pinball machine". — A "pin- are bumpers which deflect balls in various 
ball machine" is one in use of which the directions through various lanes, producing 
player, after depositing coin in slot, puts a score registered from contact with dif- 
balls in play by pulling a spring actuated ferent bumpers, and the playing thereof by 
plunger on a tilted table upon which there a minor under age of eighteen is prohibited 

99 



§ 5-624.2 Code of Laws of South Carolina § 5-627.1 

by this section whether or not such machine within or without provisions of § 5-621 
is a gambling device and whether it comes Atty. Gen. Op., Jun. 4, 1959. 

§ 5-624.2. Permitting persons under eighteen years to play pinball machines. 

It shall he unlawful for the operator of any pinball machine to permit any minor 
under the age of eighteen to play or operate such machine. The operator of any pin- 
ball machine shall be responsible that every person who plays or operates his 
machine is in fact legally authorized to do so. 

1959 (51) 320. 

Purpose of this section was to regulate tion under its police power for public bene- 

operation of pinball machines and not to fit and to require operation to be conducted 

prohibit their operation. State v. Langley, in such way as not to be obnoxious to 

S. C. , 115 S. E. 2d 308 (1960). public health, manners or morals. State v. 

Proper exercise of police power. — In Langley, S. C. ,115 S. E. 2d 308 

licensing operation of pinball machine Gen- (1960). 
eral Assembly has right to regulate opera- 

§ 5-624.3. Penalties to violate §§ 5-624.1 and 5-624.2. 

Anyone violating the provisions of §§ 5-624.1 and 5-624.2 shall upon conviction be 
imprisoned for a period not to exceed thirty days or fined in an amount not to 
exceed one hundred dollars for a first offense, or imprisoned for a period not to 
exceed six months or fined in an amount not to exceed one thousand dollars, or 
both, for second and subsequent offenses. 

1959 (51) 320. 

§ 5-625. Hours of operation of music machines outside of municipalities in 
certain counties. 

It shall be unlawful for any owner, lessee, custodian or other person in pos- 
session, for himself or another, of any nickelodeon, piccolo, phonograph or other 
mechanical or automatic music box or machine to operate the same or suffer or 
permit the operation thereof in or about any store, filling station, highway or 
other public or semipublic place outside of the limits of any incorporated town 
in Clarendon, Georgetown and Richland Counties after ten-thirty o'clock P. M. 
and before seven o'clock A. M., in Berkeley County after eleven o'clock P. M. and 
before seven o'clock A. M. or in Darlington or Williamsburg County after twelve 
o'clock midnight on Saturday and before seven o'clock A. M. on the Monday 
following or in Kershaw County to have in operation an outside speaker or speakers 
after ten-thirty P. M. and before seven o'clock A. M. or in any of said counties at 
any time in hearing distance of any church during church or other religious 
services. Every violation of the terms hereof shall be a misdemeanor and any per- 
son upon conviction shall be subject for each violation to a fine of not less than 
five dollars and not more than fifty dollars or imprisonment for not more than 
thirty days. 

1942 Code § 1396-2; 1939 (41) 433; 1942 (42) 1603; 1952 (47) 1726; 1953 (48) 216; 
1955 (49) 571, 691. 

Effect of amendments. — The 1952 keley County and the second 1955 amend- 
amendment added Georgetown and the ment eliminated Kershaw County from the 
1953 amendment added Williamsburg to first group of counties and added the above 
the counties covered by this section. specific provisions relating to Kershaw 

The first 1955 amendment added Ber- County. 

Article 3.1. 

Music Machines, etc., in Horry County. 

§ 5-627.1. Operation of such machines outside of municipalities restricted. 

It shall be unlawful for any owner, lessee, custodian or other person, for him- 
self or another, of any nickelodeon, piccolo, phonograph or other mechanical or 

100 



§ 5-627.2 1960 Cumulative Supplement § 5-638.1 

automatic music box or machine to operate such music box or machine, or suffer 
or permit the operation thereof, in or about any store, filling station, highway 
or other public or semipublic place outside of the limits of any incorporated town 
in Horry County after eleven o'clock P. M. on Saturday and until seven o'clock 
A. M., Monday following, or at any time in hearing distance of any church during 
church or other religious services. 
1953 (48) 66. 

§ 5-627.2. Penalties. 

Every violation of the terms of § 5-627.1 shall be a misdemeanor and any per- 
son upon conviction shall be subject, for each violation, to a fine of not more 
than one hundred dollars, or imprisonment for not more than thirty days. 

1953 M8) 66. 

Article 4.1. 

Music Machines, etc., in Marion and Marlboro Counties. 

§ 5-636. Operation of machine restricted. 

It shall be unlawful for any owner, lessee, custodian or other person in pos- 
session, for himself or another, of any nickelodeon, phonograph or other mechanical 
or automatic music box or machine, to which is attached or connected an outside 
loud-speaker, to operate or permit the operation thereof in Marion County or in 
Marlboro County after ten o'clock P. M. or before eight o'clock A. M. of any 
day or between the hours of ten o'clock P. M. on Saturday and eight o'clock 
A. M. on Monday, without first disconnecting or turning off the outside loud- 
speaker. 

1953 (48) 56, 260. 

§ 6-637. Penalty. 

Any person who violates the provisions of § 5-636 shall be guilty of a mis- 
demeanor and, upon conviction, shall be punished by a fine of not iess than twenty 
dollars nor more than one hundred dollars or by imprisonment for not more 
than thirty days. Each violation of the provisions of said section shall constitute 
a separate offense. 

1953 (48) 56, 260. 

Article 4.2. 

Music Machines, etc., in Chesterfield County. 
§ 5-638. Operation of machine restricted. 

It shall be unlawful for any owner, lessee, custodian or other person in possession, 
for himself or another, of any nickelodeon, piccolo, phonograph or other mechanical 
or automatic music box or machine, to which is attached or connected an outside 
loud-speaker, to operate or permit the operation thereof in Chesterfield County after 
eleven o'clock P. M. or before seven o'clock A. M. of any day, between the hours 
of eleven o'clock P. M. on Saturday and seven o'clock A. M. on the following 
Monday or at any time in hearing distance of any church during church or other 
religious services, without first disconnecting or turning off the outside loud-speaker. 

1954 (48) 1822. 

§ 5-638.1. Penalties. 

Any person who violates the provisions of § 5-638 shall be guilty of a misde- 
meanor and, upon conviction, shall be punished by a fine of not less than twenty 
dollars nor more than one hundred dollars or by imprisonment for not more than 
thirty days. Each violation of the provisions of said section shall constitute a sepa- 
rate offense. 

1954 (48) 1822. 

101 



§ 5-638.20 Cod! ok Laws of South Carolina § 5-660 

Article 4.3. 
Music Machines, etc., in Dorchester County. 
§ 6-638.20. Operation of machine restricted. 

It is unlawful for any owner, lessee, custodian or other person in possession, foi 
himself or another, of any nickelodeon, phonograph or other mechanical or auto- 
matic music hox or machine, to which is attached or connected an outside loud- 
speaker, to operate or permit the operation thereof in Dorchester County after 
twelve o'clock P. M. or hefore nine o'clock A. M. of any day or between the hours 
of twelve o'clock P. M. on Saturday and nine o'clock A. M. on Monday, without 
first disconnecting or turning off the outside loud-speaker. 

1954 (48) 1491. 

§ 6-638.21. Penalties. 

Any person who violates the provisions of § 5-638.20 shall be guilty of a mis- 
demeanor and, upon conviction, shall he punished by a fine of not less than twenty 
dollars nor more than one hundred dollars or by imprisonment for not more than 
thirty days. Each violation of the provisions of said section shall constitute a 
separate offense. 

1954 (48) 1491. 

Article 4.4. 

Music Machines, etc., in Greenwood County. 
§ 5-638.31. Operation of machine restricted. 

It shall be unlawful for any owner, lessee, custodian or other person in possession 
for himself or another of any nickelodeon, piccolo, phonograph or other mechanical 
or automatic music box or machine to operate, or permit the operation thereof, in 
or about any store, filling station, highway or other public or semi-public place in 
Greenwood County between the hours of twelve o'clock midnight and seven o'clock 
A. M. or at any time in hearing distance of any church during church hours or any 
other religious services or at any time when the music box or machine is audible 
beyond one hundred yards from the premises where it is located. 

1955 (49) 683. 

§ 5-638.32. Penalties. 

Any person violating the provisions of § 5-638.31 shall upon conviction be sub- 
ject to a fine of not less than five dollars nor more than fifty dollars or imprisonment 
for not more than thirty days. 

1955 (49) 683. 

Article 6. 

Licenses for Coin Operated Devices, Billiard Tables, Bowling Alleys and 

Skating Rinks. 

§ 5-660. License to use coin operated machines. 

Every person owning a machine or device operated by a slot wherein is de- 
posited any coin or thing of value 

( 1 ) For the playing of music, games or amusements without free play feature, 

(2) For the playing of games or amusements with free play feature, or 

(3) Of the nonpayout pin table type with or without free play feature 

Shall apply for and procure from the Commission a license for the privilege of 
making use thereof in this State, and shall pay therefor a tax of twenty-five dollars 
for each such machine described in item ( 1 ) above and seventy-five dollars for each 
such machine described in items (2) and (3) above. 

1947 (45) 592; 1948 (45) 1752; 1955 (49) 329; 1956 (49) 1841; 1959 (51) 144 [256]; 1960 
(51) 1968. 

102 



§ 5-660.1 1960 Cumulative Supplement § 5-676 

Editor's note. — For other provisions of merchandising dispensers and weighing ma- 
amendment, 1959 p. 144 [.256], see §§ 5-660.1 chines and made section otherwise applica- 
and 5-660.2. ble only to owners using remaining ma- 
Effect of amendments. — The 1955 amend- chines, 
ment increased the license fee for all ma- Municipality may regulate operation of 
chines except vending machines from pinball machines and prohibit operation 
fifteen dollars to twenty-five dollars. thereof by minors, but may not outlaw such 
The 1956 amendment increased the tax machines completely. Atty. Gen. Op., Apr. 
on machine described in (c) and added the 20, 1959. 

last sentence. Municipal license tax. — Maximum mu- 

The 1959 amendment revised list of nicipal license tax on pinball machine is 

machines required to have licenses and also $12.50 per year, in view of § 5-676 and 1955 

license fees. and 1956 amendments of this section. Atty. 

The 1960 amendment eliminated pro- Gen. Op., Apr. 20, 1959. 
visions relating to places of operation, 

§§ 5-660.1, 5-660.2. License for distributor or operator of five or more mer- 
chandising dispensers or weighing machines ; license for 
certain dispensers and weighing machines not subject 
to distributor's or operator's license. 

Repealed by A. & J. R. 1960 (51) 1968. 
Cross reference. — See now § 5-660. 

§ 5-661. Machines, tables, etc., exempt from tax. 
Repealed by A. & J. R. 1959 (51) 144 [258]. 

§ 5-662. Application for license. 

Tbe application for a license under § 5-660 shall be filed on blanks to be furnished 
by the Commission. In making application for a license, the applicant shall specify 
the manufacturer's serial number of the machine and the model or type of the ma- 
chine for which the license is desired. No such machine shall be licensed under 
this article unless it shall bear a permanently attached identifying serial number. 

1947 (45) 592; 1956 (49) 1841; 1959 (51) 144 [256]; 1960 (51) 1968. 

Effect of amendments. — The 1956 amend- cable to §§ 5-660.1 and 5-660.2. 
ment added requirement (b) to the appli- The 1960 amendment eliminated refer- 

cation. ences to §§ 5-660.1 and 5-660.2 and required 

The 1959 amendment made section appli- machine model or type instead of just type. 

§ 5-664. License to be attached to machine. 

The owner of any machine subject to the license imposed by this article shall 
see that the proper State license is attached to the machine before its operation is 
commenced. Failure to do so shall make such person liable for the penalties imposed 
in this article. No machine subject to the license imposed by this article shall be 
required to bear more than one license during any period ending June 30, consisting 
of twelve months or less. 

1947 (45) 592; 1959 (51) 144 [2561; I960 (51) 1968. 

Effect of amendments. — The 1959 amend- The 1960 amendment eliminated dis- 

ment made section applicable to dispensers. pensers. 

§ 5-676. Additional local licenses. 

Municipalities and counties may levy a license tax on the business taxed under 
this article but in no case shall a tax so levied exceed one-half of the amount levied 
by the State before March 28 1956. 

1947 (45) 592; 1959 (51) 144 [258]. 

Effect of amendment. — The 1959 amend- visions of this section and 1955 and 1956 
ment restricted State taxes to those before amendments of § 5-660, maximum municipal 
March 28, 1956. license tax on pinball machines is $12.50 per 

Maximum license tax. — In view of pro- year. Atty. Gen. Op., Apr. 20, 1959. 

103 



§ 5-677 Code of Laws of South Carolina § 5-681.4 

§ 5-677. Administration of article. 

Rules and Regulations promulgated un- 
der authority of this section, see Rules and 
Regulations, Tax Commission, in Volume 7. 

§ 5-679. Vending machines invalidity of §§ 5-660, 5-662 and 5-664. 

If any portion of §§ 5-660, 5-662 and 5-664 shall be declared unconstitutional 
or invalid, such declaration shall not affect the other provisions of this chapter. 

1960 (51) 1968. 

Article 7. 
Pinball Machines in Spartanburg County. 
§ 5-681. Minors not to play pinball machines. 

In Spartanburg County it shall be unlawful for anyone under the age of twenty- 
one years to play a pinball machine. 

1958 (50) 1883. 

§ 5-681.1. Owners and operators not permit minors to play. 

In Spartanburg County it shall be unlawful for the owner or operator of any 
pinball machine to permit anyone under the age of twenty-one to play or operate 
same. 

1958 (50) 1883. 

§ 5-681.2. Penalties to violate § 5-681 or § 5-681.1. 

Anyone violating the provisions of § 5-681 or § 5-681.1 shall, upon conviction, 
be subject to imprisonment of not exceeding one year or a fine of not exceeding 
one thousand dollars, or both, in the discretion of the court. 

1958 (50) 1883. 

§ 5-681.3. Payoff for free games won on pinball machines prohibited. 

In Spartanburg County it shall be unlawful for any person to pay off with any- 
thing of value for free games won by any player on a pinball machine. 
1958 (50) 1905. 

§ 5-681.4. Penalties to violate § 5-681.3. 

Any person violating § 5-681.3 shall, upon conviction, be subject to a fine of 
not exceeding one thousand dollars or imprisonment of not exceeding one year, 
or both, in the discretion of the court. 

1958 (50) 1905. 



104 



§ 6-16 1960 Cumulative Supplement § 6-132 

Tide 6. 
Animals. 

Chap. 1. Cruelty to Animals, §§ 6-16 to 6-17. 

2. Dogs and Rabies, §§ 6-124.1 to 6-175. 

3. Estrays, §§ 6-191 to 6-209. 

4. Livestock and Poultry Generally, §§ 6-312 to 6-382. 

5. Sanitary and Health Provisions, §§ 6-402 to 6-609. 

CHAPTER 1. 

Cruelty to Animals. 

Sec. 

6-16. [Repealed.] 

6-17. Disposition of fines. 

§ 6-16. Officers to arrest persons accused of cruelty to animals. 
Repealed by A. & J. R. 1960 (51) 1745. 

§ 6-17. Disposition of fines. 

One-half of any fine collected upon complaint or information for violation of 
this chapter shall inure and be paid to the county in which the prosecution was 
brought for general county purposes and the remaining one-half shall be paid 
(a) to the local branch or chapter of the South Carolina Society for the Prevention 
of Cruelty to Animals, in aid of the benevolent objects for which it was incor- 
porated, if there be such a branch or chapter in the municipality in which the 
prosecution took place or (b) if there be no such local branch or chapter, such 
remaining half shall likewise be paid to the county for general county purposes. 

1942 Code § 1601; 1932 Code § 1601; Cr. C. '22 § 565; Cr. C. '12 § 916; Cr. C. '02 § 
631; G. S. 1709; R. S. 513; 1905 (24) 952; 1960 (51) 1745. 

Effect of amendment. — The 1960 amend- 
ment eliminated provision for payment of 
portion of fines to township deputy. 

CHAPTER 2. 
Dogs and Rabies. 

Article 2. Article 3. 

Rabies Control Act. Miscellaneous Provisions. 

Sec. Sec. 

6-124.1. Same; special provision for Chester 6-151. When dogs are property. 

County. 6-175. Owning or keeping vicious dogs in 

6-132. Uninoculated dog not to run at large; Aiken County, 

impounding and disposition of 
animals. 

Article 2. 

Rabies Control Act. 

§ 6-124.1. Same ; special provision for Chester County. 
Provisions of A. & J. R. 1957 (50) 400 make up this section. 

§ 6-132. Uninoculated dog not to run at large ; impounding and disposition of 
animals. 

It shall be unlawful for any owner of any dog which has not been inoculated, 
as required by § 6-125, to allow it to run at large. The county health department 
may capture and impound any such dog found running at large and dispose of such 
animal by sale or a humane form of execution, if such animal remains unclaimed for 

105 



§ 6-151 Code of Laws of South Carolina § 6-193 

three days. Such power to impound and dispose of animals shall extend to apply 
to any animals unclaimed and found or suspected to he affected by rabies, whether 
wild or domestic, and the Director of the Division of Game and the livestock and 
poultry health department of the Clemson Agricultural College of South Carolina 
shall cooperate with and aid the State Board of Health and the county health de- 
partments in the enforcement of this provision as affects animals found or suspected 
to be affected by rabies when such animals are in their care, jurisdiction and control. 

1950 (46) 2406; 1952 (47) 2890; 1960 (51) 2085. 

Effect of amendment. — The 1952 amend- The 1960 amendment changed livestock 

ment substituted Director of the Division sanitary department to livestock and poultry 
of Game for Chief Game Warden. health department. 

Article 3. 
Miscellaneous Provisions. 
§ 6-151. When dogs are property. 

Dogs shall be held to be property in any county of the State in which they are 
exempt from taxation. 

1952 (47) 1898. 

Editor's note. — This section conies from that the phrase "in any county of the State 
an amendment to § 2609 of the Code of in which they are exempt from taxation" 
1942 dealing with the capitation tax on in the above section would be surplusage 
dogs. The General Assembly evidently under existing law. 

failed to realize that that section and Capitation tax must be paid on dogs, 

others relating to the dog tax were re- except in counties of Union, Anderson, 
pealed by implication by the Rabies Con- Abbeville, Lexington, Greenwood, Laurens, 
trol Act of 1950 (1952 Code, §§ 6-121 to and Newberry, before they may be con- 
6-141) which provided that the inoculation stituted property, but in Lexington County 
fee took the place of the former dog tax. they must first be inoculated. Atty. Gen. 
In view of the foregoing it would appear Op., Jul. 8, 1959. 

§ 6-175. Owning or keeping vicious dogs in Aiken County. 

Provisions of A. & J. R. 1959 (51) 27 make up this section. 

CHAPTER 3. 

ESTRAYS. 

Sec. Sec. 

6-191. Estray defined. 6-193. Sale; use of proceeds. 

6-192. Finder may take up; deliver or 6-194. Penalties. 

report to magistrate. 6-201 to 6-209. [Repealed.] 

§ 6-191. Estray denned. 

Any domestic or domesticated animal found wandering at large or abandoned in 
the public ways or on the lands of any person other than its owner shall be an 
estray. 

1960 (51) 1741. 

§ 6-192. Finder may take up; deliver or report to magistrate. 

Any person finding an estray may take possession thereof and shall, if the owner 
is not found and no claim to it is made within three days, deliver or report its 
finding and taking up to the nearest magistrate. 

1960 (51) 1741. 

§ 6-193. Sale ; use of proceeds. 

The magistrate shall sell such estray at public sale after ten days' notice posted 
in three public places in the county, one of which shall be the courthouse door. The 
proceeds of sale of an estray shall be applied first to costs of sale and next to 

106 



§ 6-194 1960 Cumulative Supplement § 6-312 

costs of care and feeding of the estray, including a reasonable compensation as 
determined by the magistrate for the finder's labor for care and feeding. Any bal- 
ance remaining shall be paid into the county treasury as general county funds. 
1960 (51) 1741. 

§ 6-194. Penalties. 

Any person violating the provisions of this chapter, or attempting to conceal 
or appropriate an estray to his own use, shall be guilty of a misdemeanor and upon 
conviction shall be fined not more than one hundred dollars or imprisoned not 
more than thirty days, for each offense. 

1960 (51) 1741. 

§§ 6-201 to 6-209. Finder to advertise and take before magistrate for ap- 
praisement; penalties for failure to perform duties. 

Repealed by A. & J. R. 1960 (51) 1751. 
Cross reference. — See now §§ 6-191 to 
6-194. 

CHAPTER 4. 

Livestock and Poultry Generally.* 

Article 2. Sec. 

Livestock Trespassing or Running at 6-368. Certificate to be recorded 

Large. 6-369. Expiration of brands; renewal. 

Sec. 6-370. Notice of necessity of renewal. 

6-312. Same; local exceptions in Berkeley 6-371. Failure to renew amounts to aban- 

County. donment. 

6-314. [Repealed.] 6-372. Abandoned brands may be allowed 
6-319. JRepealed.f to others. 

6-320. [Repealed.] 6-373. Transfers of certificates. 

Article 4. 6-374. Cancellation of registration. 

Branding or Earmarking Livestock. 6-375. Revocation of registration. 

6-361. Definitions. 6-376. When livestock branded. 

6-362. Branding lawful. 6-377. Branding of livestock purchased or 
6-363. Earmarking of livestock. acquired. 

6-364. Only one brand permissible per per- 6-378. When branding unlawful 

son. 6-379. Certificate as evidence of ownership 
6-365. Wife or minor may have individual of livestock, 

brand. 6-380. Brand records. 

6-366. Application for adoption of brand. 6-381. Rules and regulations. 

6-367. Issue of certificate for brand. 6-382. Penalties. 

Article 2. 
Livestock Trespassing or Running at Large. 
§ 6-311. Domestic animals not to be permitted to run at large. 

As to proof of negligence where cattle highway, as rule that violation of statute 

running at large were killed by a train, is negligence per se is, by its very nature, 

see Johnson v. Atlantic Coast Line R. Co., especially applicable to penal statutes im- 

217 S. C. 190, 60 S. E. 2d 226 (1950). posing upon persons specific duties for 

It was not error to charge first sentence protection of others. Swindler v. Peay, 227 

of this section in civil action brought S. C. 157, 87 S. E. 2d 296 (1955). 
against truck owner for killing cow on 

§ 6-312. Same; local exceptions in Berkeley County. 

(3) * * * 

The suspensions provided in subsections (2) and (3) shall continue until 
February 15 1960 in the territories described in said subsections. 

1942 Code § 6281; 1932 Code §§ 1221, 6281, 6283; Civ. C. '22 § 3276; Civ. C. *12 § 2280; 
Civ. C. '02 § 1497; G. S. 1184; R. S. 1288; 1898 (22) 800; 1905 (24) 959; 1906 (25) 116; 

* See §§ 6-413 and 6-413.1 as to when may restrict importation of livestock, livestock 
products and poultry. 

]07 Volume 1 



§ 6-314 Code of Laws of South Carolina § 6-347 

1908 (25) 1048; 1913 (28) 29; 1917 (30) 330; 1918 (30) 848; 1919 (31) 152; 1920 (31) 
719, 877, 1051; 1921 (32) 200; 1925 (34) 24; 1927 (35) 749; 1943 (43) 306; 1949 (46) 
543; 1951 (47) 412; 1953 (48) 163; 1955 (49) 33. 

Editor's note. — Provisions of subsection sion from February 15 1955 to October 31 
(1) expired October 31, 1955. 1955 for territory in subsection (1) and 

Effect of amendments.— T he 1953 from February 15 1955 to February 15 
amendment changed the termination date 1960 for territories in subsections (2) and 
of the suspension from February 15 1953 to (3). 

February 15 1955. The 1955 amendment Section otherwise not affected, 

changed the termination date of suspen- 

§ 6-314. Remedy when stone-horse permitted to run at large. 

Repealed by A. & J. R. 1960 (51) 1745. 

§ 6-319. Proceedings when owner unknown. 

Repealed by A. & J. R. 1960 (51) 1745. 
Cross reference. — See now §§ 6-191 to 
6-194. 

§ 6-320. Proceedings when owners neglect to adjust penalties. 
Repealed by A. & J. R. 1960 (51) 1745. 

Article 3. 
Regulation of Stockyards, Dealers in Livestock, etc. 
§ 6-334. Inspection; grant and revocation of permit. 

Constitutionality. — The manner in which The intent of this section is that the 

the livestock committee is appointed under committee shall consist of seven persons, 
this section does not constitute an invalid four of whom are to be appointed by the 
delegation of legislative power. State v. board of trustees of Clemson College 
Taylor, 223 S. C. 526, 77 S. E. 2d 195 and the other three to consist of the des- 
(1953). ignated officers of the Livestock Dealer* 

Association. State v. Taylor, 223 S. C. 526, 
77 S. E. 2d 195 (1953). 

§ 6-337. Facilities required and condition thereof. 

Quoted in State v. Taylor, 223 S. C. 526, 
77 S. E. 2d 195 (1953). 

§ 6-339. Cattle to be tested for brucellosis. 

Stated in State v. Taylor, 223 S. C. 526, 
77 S. E. 2d 195 (1953). 

§ 6-341. Swine to be inoculated against cholera. 

Stated in State v. Taylor, 223 S. C. 526, 
77 S. E. 2d 195 (1953). 

§ 6-343. Infected or exposed animals. 

Cross reference. — As to sale of diseased Quoted in State v. Taylor 223 S. C. 526, 

livestock, see § 6-406. 77 S. E. 2d 195 (1953). 

§ 6-345. Rules and regulations. 

Rules and regulations promulgated under This section does not violate S. C. 

authority of this section, see Rules and Const., Art. 3, § 1, by unlawfully attempt- 
Regulations, Clemson Agricultural College, ing to delegate the law making authority 
in Volume 7. of the legislature. State v. Taylor, 223 S. C. 

526, 77 S. E. 2d 195 (1953). 

§ 6-347. Penalties. 

Stated in State v. Taylor, 223 S. C. 526, 
77 S. E. 2d 195 (1953). 

10S 



§ 6-361 1960 Cumulative Supplement § 6-368 

Article 4. 
Branding or Earmarking Livestock. 
§ 6-361. Definitions. 

The following words and phrases, as used in this article, shall have the follow- 
ing meanings, unless the context otherwise requires : 

(1) "Livestock" includes neat cattle, horses, mules, asses, hogs, sheep and 
goats ; and 

(2) "Owner" and "stock owner" mean any person who owns livestock. 
1952 (47) 2175. 

§ 6-362. Branding lawful. 

It is lawful to brand livestock with the owner's brand in accordance with the 
provisions of this article. 

1952 (47) 2175. 

§ 6-363. Earmarking of livestock. 

In addition to, or as an alternative to, a brand, any person may have an ear- 
mark for marking livestock. All provisions of this article relating to brands shall 
apply to earmarks. 

1952 (47) 2175. 

§ 6-364. Only one brand permissible per person. 

No person shall have more than one brand. 
1952 (47) 2175. 

§ 6-365. Wife or minor may have individual brand. 

A wife who owns livestock separate from her husband or a minor who owns 
livestock separate from his father or guardian may have a brand. The father or 
guardian of any minor who has a brand shall be responsible for the proper use 
thereof. 

1952 (47) 2175. 

§ 6-366. Application for adoption of brand. 

Any person desiring to adopt any brand for branding livestock, which is not 
then the recorded brand of another, shall forward to the Secretary of State a 
facsimile of the desired brand together with a written application to adopt the 
brand. The application shall state where the brand will appear on the livestock. 
A fee of three dollars shall be enclosed with the application. 

1952 (47) 2175. 

§ 6-367. Issue of certificate for brand. 

Upon receipt of the application and the fee the Secretary of State shall register 
the brand and issue to the applicant a certificate showing that his brand has been 
registered, unless the brand is already registered as the brand of another or un- 
less the brand would probably be mistaken for a brand already registered, in 
either of which cases the Secretary of State shall return the facsimile and the 
fee to the applicant. The certificate shall show on its face the brand which has 
been registered and the place where the brand will appear on the livestock. 

1952 (47) 2175. 

§ 6-368. Certificate to be recorded. 

Upon receipt of the certificate provided for in § 6-367 from the Secretary of 
State, the owner shall record the certificate with the clerk of court in every 
county in which he has livestock. For each recording the clerk shall receive 

109 



§ 6-369 Code of Laws of South Carolina § 6-375 

a fee of one dollar. He shall record the brands in a book kept for the purpose 
and the book shall be open to inspection by the public. 
1952 (47) 2175. 

§ 6-369. Expiration of brands ; renewal. 

On July 1 1962 and on July first of every tenth year thereafter the registra- 
tion, certification, and recording provided for in §§ 6-366 to 6-368 shall expire. 
But upon application filed within six months prior to the expiration of any term, 
the registration may be renewed for another term. Applications for renewal 
shall be accompanied by the same fee as is required for original applications. A 
certificate as provided for in § 6-367 shall be issued upon each renewal and the 
certificate shall again be recorded and the fee paid to the clerk of court as pro- 
vided for in § 6-368. 

1952 (47) 2175. 

§ 6-370. Notice of necessity of renewal. 

The Secretary of State shall notify registrants under this article of the neces- 
sity of renewal within the six months next preceding the expiration of registra- 
tion by writing to the last known address of each registrant. The notice shall 
state that if the owner fails to renew the registration of his brand it will be de- 
clared abandoned and allowed to other applicants. 

1952 (47) 2175. 

§ 6-371. Failure to renew amounts to abandonment. 

Failure to renew the registration of a brand as provided in § 6-369 shall con- 
stitute an abandonment of the brand. 
1952 (47) 2175. 

§ 6-372. Abandoned brands may be allowed to others. 

Any brand which has been abandoned may be allowed to other applicants after 
the lapse of six months from the expiration of registration. But the Secretary 
of State may allow any abandoned brand to the former owner at any time before 
the brand is allowed to another. 

1952 (47) 2175. 

§ 6-373. Transfers of certificates. 

Any brand registered under the terms of this article may be conveyed to another 
by an instrument in writing, in duplicate, duly executed, but the conveyance shall 
not be complete until the instrument has been registered with the Secretary of 
State. Upon registration of the instrument and payment of a fee of three dol- 
lars the Secretary of State shall issue to the purchaser, in his name, a new cer- 
tificate for the remainder of the term of registration. The certificate shall be re- 
corded and the fee shall be paid, as provided in § 6-368. 

1952 (47) 2175. 

§ 6-374. Cancellation of registration. 

The Secretary of State shall cancel the registration of any brand: 

(1) At the written request of the owner; 

(2) Upon failure to renew the registration in accordance with the terms of 
this article ; or 

(3) Upon the order of any court of competent jurisdiction. 
1952 (47) 2175. 

§ 6-375. Revocation of registration. 

The registration of any brand granted under this article may be revoked by 
the order of any court in this State upon a showing of improper use of the brand. 

1952 (47) 2175. 

110 



§ 6-376 1960 Cumulative Supplement § 6-380 

§ 6-376. When livestock branded. 

If livestock are branded by the owner, they shall be branded as follows: neat 
cattle, horses, mules and asses shall be branded before they are twelve months 
old; hogs, sheep and goats shall be branded before they are six months old. The 
ages specified herein shall not apply to livestock which have passed those ages 
at the time they are acquired by the owner or at the time the owner is granted 
a brand under this article. But all such livestock, if branded by the owner, shall 
be branded within one month after they are acquired by the owner or the time 
the owner is granted a brand under this article. 

1952 (47) 2175. 

§ 6-377. Branding of livestock purchased or acquired. 

If any owner who purchases or acquires livestock from another brands the 
livestock with his own brand, he shall do so in the presence of at least two disin- 
terested parties. The disinterested parties shall certify in writing that they 
witnessed the branding of the livestock. The certificate shall also state: where 
the branding occurred ; with what brand, if any, the livestock were previously 
branded; and with what brand the livestock were branded or rebranded. The 
certificate shall be retained by the owner. It shall be unlawful to brand any 
livestock purchased or acquired from another other than in the manner required 
by this section. 

1952 (47) 2175. 

§ 6-378. When branding unlawful. 

It is unlawful for any person to brand, or to cause to be branded, any livestock: 

(1) With any brand unless it has been registered with and certified by the 
Secretary of State as his brand and has been recorded with the clerk of court 
in each county in which such person has livestock; 

(2) With any brand which is registered, certified and recorded as the brand 
of another; or 

(3) With any brand which has been abandoned or the registration of which 
has been cancelled, unless the brand has thereafter been granted to him. 

1952 (47) 2175. 

§ 6-379. Certificate as evidence of ownership of livestock. 

In any criminal or civil action in which title to livestock is involved or proper 
to be proved, the certificate provided for in § 6-367 shall, when recorded as 
provided for in § 6-368, be prima facie evidence of ownership of any livestock 
bearing the brand shown on the face of the certificate. When livestock is brought 
into this State from another state or territory in transit beyond the boundaries 
of this State, a copy of a brand granted or held in the other state or territory, 
when certified to by the proper officer in that state, shall be received in evidence 
under the same circumstances and shall have the same effect as a certificate issued 
under the provisions of this article. 

1952 (47) 2175. 

Quoted in Griggs v. Driggers, 230 S. C. 
97, 94 S. E. 2d 225 (1956). 

§ 6-380. Brand records. 

The Secretary of State shall keep an accurate record of all brands registered 
under the terms of this article and the names and addresses of the owners of 
the brands. These records shall be open to inspection by the public. 

1952 (47) 2175. 

Ill 



§ 6-381 



Code of Laws of South Carolina 



§ 6-382 



§ 6-381. Rules and regulations. 

The Secretary of State may promulgate rules and regulations which, in his 
judgment, may be necessary or proper to supplement or clarify the provisions 
of this article. The violation of any rule or regulation made and promulgated 
hereunder shall constitute a violation of this article. 

19S2 (47) 2175. 

§ 6-382. Penalties. 

Any person convicted of a violation of this article shall be punished by a fine 
of not less than fifty dollars nor more than five hundred dollars or by imprison- 
ment for not less than thirty days nor more than one year or by both such fine and 
imprisonment. 

1952 (47) 2175. 

CHAPTER 5. 
Sanitary and Health Provisions. 



Article 1. 
General Provisions. 
Sec. 

6-402. 

6-405. Regulations on outbreak of foot and 
mouth disease, vesicular exan- 
thema or rinderpest. 

6-408.1. Possession, sale, etc., of live viru- 
lent unaltered hog cholera virus. 

6-408.2. Sale and distribution of biological 
products containing a viable, liv- 
ing agent capable of producing 
disease in livestock and poultry. 

6-410. Funds in case of certain epidemics. 

6-411. State to pay portion of indemnity 
for cattle infested with Bang's 
disease. 

6-413. When restrict importation of live- 
stock, livestock products and 
poultry. 

6-413.1. Quarantine against importation of 
slaughtered pork from contagi- 
ous disease areas. 
Article 2. 
Remedies in Case of Infection. 

6-425. Treatment or destruction of diseased 
animals. 

6-433. Appraisal of animals condemned for 
certain diseases. 
Article 3. 
Brucellosis. 

6-443. Conduct of control. 

6-444. Suspected animals subject to quaran- 
tine. 

6-452. Area tests; when cattle not to be 
brought into area. 

6-455. Cooperation with United States; in- 
spectors. 

6-456. Reports. 

Article 4. 
Tuberculosis and Paratuberculosis. 

6-472. Tuberculin and paratuberculin tests; 
observation. 



Sec. 

6-476. Official tests. 

6-477. Inspectors; accepting assistance from 
United States Government. 
Article 6. 
Feeding Garbage to Swine. 

6-501 to 6-509. [Repealed.] 

6-510. Definitions. 

6-511. Application of article. 

6-512. Permit required to feed garbage to 
swine. 

6-513. Application for permit. 

6-514. Revocation or refusal of permit. 

6-515. Garbage must be heated. 

6-516. Care of garbage feeding premises. 

6-517. Inspection of premises; records. 

6-518. Hogs prohibited on garbage dumps. 

6-519. Sale of raw garbage consuming hogs. 

6-520. Administration and enforcement 

6-521. Penalties; injunctions. 
Article 7. 
Inspection, Transportation and Sale of 
Meats and Meat Products. 

6-601. Municipalities and counties may pro- 
vide for inspection of meats and 
meat products. 

6-602. Slaughterers may apply for permit 
to transport and sell products. 

6-603. Inspection of meat by applicants to 
be under supervision of veteri- 
narian. 

6-604. Investigation of applicants; issue of 
numbered permits. 

6-605. Numbered permit to be establish- 
ment's official State number; use 
to identify meats, etc. 

6-606. Revocation of permit. 

6-607. Meat carcasses inspected and passed 
to be stamped. 

6-608. Inspection fees. 

6-609. Rules and regulations. 



112 



§ 6-401 1960 Cumulative Supplement § 6-410 

Article 1. 
General Provisions. 

§ 6-401. Clemson to investigate diseases of domestic animals, eto. 

Rules and regulations promulgated under of South Carolina, The, in Volume 7. 
authority of this section, see Rules and Cited in State v. Taylor, 223 S. C. 526, 

Regulations, Clemson Agricultural College 77 S. E. 2d 195 (1953). 

§ 6-402. 

Editor's note. — For provisions of 1956 p. 
1772 adding this section, see §§ 6-408.1 and 
6-408.2. 

§ 6-405. Regulations on outbreak of foot and mouth disease, vesicular ex- 
anthema or rinderpest. 

The board of trustees of The Clemson Agricultural College of South Carolina 
and the State Veterinarian may make specific regulations in case of an outbreak 
of foot and mouth diseases, vesicular exanthema or rinderpest. 

1942 Code § 5806-39; 1932 Code § 5756; Civ. C. '22 § 2851; 1919 (31) 241; 1953 (48) 
243. 

Effect of amendment. — The amendment 
added "vesicular exanthema or rinderpest" 
to the scope of the section. 

§ 6-408.1. Possession, sale, etc., of live virulent unaltered hog cholera virus. 

It shall be unlawful for any person to have in possession, keep, sell, offer for 
sale, barter, exchange, give away or otherwise dispose of live virulent unaltered 
hog cholera virus (disease producing blood) which is capable of reproducing hog 
cholera and of establishing a new focus of infection. 

1956 (49) 1772. 

§ 6-408.2. Sale and distribution of biological products containing a viable, 
living agent capable of producing disease in livestock and 
poultry. 

Approval of the State Veterinarian shall be required for the sale and distribution 
of all biological products containing a viable, living agent capable of producing 
disease in livestock and poultry, in accordance with rules and regulations promul- 
gated by the board of trustees of The Clemson Agricultural College of South 
Carolina. 

1956 (49) 1772. 

§ 6-410. Funds in case of certain epidemics. 

Whenever the State Veterinarian shall certify to the Governor that an outbreak 
of foot and mouth disease, vesicular exanthema or rinderpest has occurred within 
the bounds of the State, the Governor may execute a note or notes in the name 
of the State, countersigned by the Comptroller General and the State Treasurer, 
and may raise sufficient funds in that manner to be used in the eradication of the 
diseases. Such sum of money shall be placed in the State Treasury and be drawn 
on by warrants, issued by the proper officers of The Clemson Agricultural College 
of South Carolina in the usual manner that such warrants are issued, and shall be 
paid by the State Treasurer in the same manner. Such sum of money shall be used 
for the payment for destroyed animals, for the employment of additional help by 
the authorities of the College and for such other expenses as in the discretion of 
the board of trustees of the College may be necessary and incident to the eradica- 
tion of the diseases. 

1942 Code § 5806-40; 1932 Code § 5757; Civ. C. '22 § 2852; 1919 (31) 241; 1953 (48) 
243. 

Effect of amendment. — The amendment 
added vesicular exanthema and rinderpest 
to the scope of the section. 

113 



§ 6-411 Code of Laws of South Carolina § 6-425 

§ 6-411. State to pay portion of indemnity for cattle infected with Bang's 
disease. 

The State will cooperate with the Federal Government in paying indemnity for 
cattle owned in this State known to be infected with Bang's disease as a result of a 
test made by the Bureau of Animal Industry, United States Department of Agri- 
culture or by a graduate veterinarian licensed by the State Board of Veterinary 
Examiners of the State and The Clemson Agricultural College of South Carolina 
cooperating in accordance with rules and regulations prescribed by said bureau 
and said college and whose owners agree to cooperate with the Federal Government 
and the State in the control and eradication of said disease. The State shall in no 
case pay as its portion of the indemnity for a grade animal a sum in excess of 
twenty-five dollars and for a pure-bred animal a sum in excess of fifty dollars. Nor 
shall any such animal be so appraised or paid for unless it be at least six months 
old and has been in good faith owned and kept within the State for six months 
immediately before the killing. Such payment on the part of the State shall be 
made from such funds as may annually be made available to the livestock and 
poultry health department of The Clemson Agricultural College of South Carolina 
for such purpose by the General Assembly of the State. The State Veterinarian 
shall, upon request, furnish to persons needing the same suitable blank forms to 
be used in certifying the result of any test made under the provisions hereof. 

1942 Code § 5806-43; 1939 (41) 220; 1943 (43) 78; 1948 (45) 1869; 1960 (51) 2085. 

Effect of amendment. — The 1960 amend- ment to livestock and poultry health de- 
ment changed livestock sanitary depart- partment. 

§ 6-413. When restrict importation of livestock, livestock products and poul- 
try. 

When any state, in the absence of a general quarantine, places an embargo or 
other restrictions on the importation of livestock, livestock products or poultry 
from this State, the Clemson College livestock and poultry health department shall 
forthwith impose a like restriction against the importation of livestock, livestock 
products or poultry from the state declaring the embargo or other restrictions which 
shall remain in force so long as the embargo or other restrictions declared by the 
other state remains in effect. 

1954 (48) 1710; 1960 (51) 2085. 

Effect of amendment. — The 1960 amend- ment to livestock and poultry health de- 
ment changed livestock sanitary depart- partment. 

g 6-413.1. Quarantine against importation of slaughtered pork from con- 
tagious disease areas. 

Whenever it comes to the attention of the Department, either officially or other- 
wise, that V. E. or any other contagious disease is prevalent in any section of the 
United States, the Department shall impose a quarantine against the importation 
into this State of any slaughtered pork of the particular area affected by the quaran- 
tine. This shall not apply to meat slaughtered prior to outbreak of the V. E. disease 
in that area. 

1954 (48) 1710. 

Article 2. 
Remedies in Case of Injection. 
§ 6-425. Treatment or destruction of diseased animals. 

When two or more reputable citizens of any county in this State shall notify 
the Veterinarian that any animals, including poultry and domesticated fowls of 
every kind, in their county are affected with a contagious disease, the tendency 
of which is to cause the death of such animals, including the diseases commonly 

114 



§ 6-433 1960 Cumulative Supplement § 6-452 

known as "foot and mouth disease," "vesicular exanthema," and "rinderpest," he 
shall investigate the same or cause an investigation thereof to be made. For such 
purpose he or any assistant of his shall have the right to go upon any premises 
on which such affected animals are or are supposed to be. The Veterinarian may 
treat such affected animals, at the expense of the owner of the same, or he may 
cause the same to be destroyed, under such rules and regulations as may be pre- 
scribed by the board of trustees of The Clemson Agricultural College of South 
Carolina. Except as otherwise expressly provided no compensation shall be paid 
to the owner of any animals destroyed under the provisions of this section. 

1942 Code §§ 5749, S7S0; 1932 Code §§ 5749, 5750; Civ. C. '22 § 2845; Civ. C. *12 § 
1905; Civ. C. '02 § 1318; 1901 (23) 737; 1953 (48) 243. 

Effect of amendment. — The amendment 
added vesicular exanthema and rinderpest 
to the scope of the section. 

§ 6-433. Appraisal of animals condemned for certain diseases. 

Should an outbreak of any of the diseases which are commonly known as "foot 
and mouth disease," "vesicular exanthema" or "rinderpest" occur, the value to be 
placed on animals condemned and destroyed on account of being affected with, or 
having been exposed to, any of such diseases shall be fixed as follows: The method 
of appraising such value shall be in accordance with the regulations provided by 
the United States Department of Agriculture and upon such appraisal being made 
the State shall pay one-half of the amount at which such livestock is valued, upon 
a warrant approved by the State Veterinarian and drawn by the proper authorities 
of The Clemson Agricultural College of South Carolina to the Comptroller General, 
who shall issue his warrant on the State Treasurer for such amount, the same to 
be paid as provided in § 6-410. 

1942 Code §§ 5806-37, 5806-38; 1932 Code §§ 5754, 5755; Civ. C. *22 §§ 2849, 2850; 
1919 (31) 241; 1953 (48) 243. 

Effect of amendment. — The amendment 
added vesicular exanthema and rinderpest 
to the scope of the section. 

Article 3. 
Brucellosis. 
§ 6-443. Conduct of control. 

The control and eradication of brucellosis in the herds of the State shall be con- 
ducted as far as the funds of the livestock and poultry health department of The 
Clemson Agricultural College of South Carolina will permit and in accordance with 
the rules and regulations promulgated by the board of trustees of the College. 

1949 (46) 454; 1960 (51) 2085. 

Effect of amendment. — The 1960 amend- ment to livestock and poultry health de- 
ment changed livestock sanitary depart- partment. 

§ 6-444. Suspected animals subject to quarantine. 

Animals infected with or exposed to the disease of brucellosis, or suspected of 
being carriers of said disease, shall be subject to quarantine and the rules and 
regulations of the livestock and poultry health department of The Clemson Agri- 
cultural College of South Carolina. 

1949 (46) 454; 1960 (51) 2085. 

Effect of amendment. — The 1960 amend- ment to livestock and poultry health de- 
ment changed livestock sanitary depart- partment. 

§ 6-452. Area tests ; when cattle not to be brought into area. 

When the director of the livestock and poultry health department of The Clemson 
Agricultural College of South Carolina shall deem it advisable to test all cattle 
in any specified county within the State, in accordance with the provisions of this 

115 



§ 6-455 Code of Laws of South Carolina § 6-472 

article or upon receipt of a petition containing at least seventy-five per cent or 
more of the livestock owners holding ninety-five per cent or more of the cattle 
in the county, the test of all cattle in such county shall become compulsory and 
the cattle owners or persons in charge, upon notification from the livestock and 
poultry health department or one of the department's inspectors, shall assemble or 
have assembled such animals at the times and places designated by an inspector of 
such department or the United States Bureau of Animal Industry and give such 
assistance as may be necessary for the proper testing of the cattle. Inspectors en- 
gaged in the area testing of cattle for brucellosis shall have due authority to enter 
premises. No cattle, except for immediate slaughter, shall be brought into the 
county in which area work is being or has been conducted, unless accompanied by 
a proper test chart and health certificate issued by an approved accredited veteri- 
narian, showing that the cattle have passed a proper test for brucellosis. 

1949 (46) 454; 1960 (51) 2085. 

Effect of amendment. — The 1960 amend- merit to livestock and poultry health de- 
ment changed livestock sanitary depart- partment. 

§ 6-455. Cooperation with United States; inspectors. 

The livestock and poultry health department of The Clemson Agricultural 
College of South Carolina may cooperate with the United States Department of 
Agriculture in the control and eradication of brucellosis. Said livestock and poultry 
health department may appoint and commission, without salary from the State, as 
its inspectors, representatives of the United States Bureau of Animal Industry and 
may accept from the United States Government such assistance, financial and other- 
wise, for carrying out the purpose of this article, as may be available from time to 
time. 

1949 (46) 454; 1960 (51) 2085. 

Effect of amendment. — The 1960 amend- merit to livestock and poultry health de- 
ment changed livestock sanitary depart- partment. 

§ 6-456. Reports. 

Reports, made in duplicate, of all activities of all personnel engaged in the testing 
or vaccination of cattle in connection with brucellosis are compulsory and shall be 
made promptly to the livestock and poultry health department of The Clemson 
Agricultural College of South Carolina, such reports to be made on forms furnished 
by the department. 

1949 (46) 454; 1960 (51) 2085. 

Effect of amendment. — The 1960 amend- ment to livestock and poultry health de- 
ment changed livestock sanitary depart- partment. 

Article 4. 

Tuberculosis and Paratubcrculosis. 

§ 6-472. Tuberculin and paratuberculin tests; observation. 

When the livestock and poultry health department of The Clemson Agricultural 
College of South Carolina shall be conducting tuberculosis or paratuberculosis 
eradication work in any county, in cooperation with the United States Bureau of 
Animal Industry under the area plan or under its general authority, to eradicate, 
control and prevent contagious and infectious diseases of animals, all persons owning 
or having cattle in their charge shall upon notice assemble or have assembled such 
cattle at a time and place designated by an inspector or veterinarian of the livestock 
and poultry health department of The Clemson Agricultural College of South 
Carolina or of the United States Bureau of Animal Industry in order that tuberculin 
or paratuberculin tests may be applied. Assistance shall be given in confining 
these cattle in order that the test may be administered properly, and the same 

lid 



§ 6-476 1960 Cumulative Supplement § 6-510 

cattle shall be returned for observation at a time and place designated by said in- 
spector or veterinarian. Any herd or herds of cattle or all cattle in the modified 
accredited area or other areas shall be tuberculin or paratuberculin tested or re- 
tested at such times as deemed advisable by the livestock and poultry health depart- 
ment of The Clemson Agricultural College of South Carolina. 

1949 (46) 412; 1960 (51) 20SS. 

Effect of amendment. — The 1960 amend- ment to livestock and poultry health de- 
ment changed livestock sanitary depart- partment. 

§ 6-476. Official tests. 

The intradermal and thermal tuberculosis test for tuberculosis and the intradermal 
test for paratuberculosis will be recognized as official tests when applied by an 
approved accredited veterinarian, under the direction of the livestock and poultry 
health department of The Clemson Agricultural College of South Carolina and when 
the certificate is filed with the State Veterinarian immediately after the completion 
of the test. 

1949 (46) 412; 1960 (51) 2085. 

Effect of amendment. — The 1960 amend- ment to livestock and poultry health de- 
ment changed livestock sanitary depart- partment. 

§ 6-477. Inspectors; accepting assistance from United States Government. 

The livestock and poultry health department of The Clemson Agricultural College 
of South Carolina may appoint and commission, without salary from the State, as its 
inspectors, representatives of the Bureau of Animal Industry, United States De- 
partment of Agriculture, and to accept from the United States Government such 
assistance, financial and otherwise, for carrying out the purpose of this article, as 
may be available from time to time. 

1949 (46) 412; 1960 (51) 2085. 

Effect of amendment. — The 1960 amend- ment to livestock and poultry health de- 
ment changed livestock sanitary depart- partment. 

Article 5. 
Importation of Livestock. 

§ 6-491. Imported livestock to be accompanied by health certificate. 

Cross reference. — As to further restric- 
tion on importation of livestock, livestock 
products and poultry, see §§ 6-413 et seq. 

Article 6. 
Feeding Garbage to Swine. 
§§ 6-501 to 6-509. Garbage denned; penalties. 
Repealed by A. & J. R. 1954 (48) 1710. 
Cross reference. — See now §§ 6-510 et seq. 

§ 6-510. Definitions. 

( 1 ) "Garbage" regardless of previous processing means any animal or vegetable 
wastes resulting from handling, preparation, cooking and consumption of foods, in- 
cluding parts of animal carcasses, offal or contents of offal. 

(2) "Person" means State, any municipality, political subdivision, institution, 
public or private corporation, individual, partnership or any other entity. 

(3) A "garbage dump" is a place or area where ordinary household garbage is 
disposed of from two or more families. 

1954 (48) 1710. 

117 



§ 6-511 Code of Laws of South Carolina § 6-517 

§ 6-511. Application of article. 

This article shall not apply to any person who feeds only his own household gar- 
bage to swine, except that no person shall sell or offer for sale any hogs which 
have consumed any raw garbage within thirty days of sale, but in case of such sale 
no permit shall be required as provided elsewhere herein. 

1954 (48) 1710. 

Cross reference. — See § 6-519. 

§ 6-512. Permit required to feed garbage to swine. 

No person shall feed garbage to swine from more than two families or places 
without first securing a permit therefor from the livestock and poultry health depart- 
ment of The Clemson Agricultural College of South Carolina or the county agri- 
cultural agent. 

1954 (48) 1710; 1960 (51) 2085. 

Effect of amendment. — The 1960 amend- ment to livestock and poultry health de- 
ment changed livestock sanitary depart- partment. 

§ 6-513. Application for permit. 

Any person desiring to obtain a permit to feed garbage to swine shall make 
written application therefor to the department or the county agricultural agent 
in accordance with requirements promulgated under authority of the board of 
trustees of the College. 

1954 (48) 1710. 

§ 6-514. Revocation or refusal of permit. 

Upon determination that any person having a permit issued under this article, 
or who has applied for a permit hereunder, has violated or failed to comply with 
any of the provisions of this article, or any of the rules and regulations promul- 
gated hereunder, the department may revoke such permit or refuse to issue a 
permit to an applicant therefor. 

1954 (48) 1710. 

§ 6-515. Garbage must be heated. 

All garbage regardless of previous processing before it reaches the garbage feed- 
ing establishment or farm shall, before being fed to swine, be thoroughly heated 
to at least 212° F. (boiling temperature) for at least thirty minutes. 

1954 (48) 1710. 

§ 6-516. Care of garbage feeding premises. 

Premises on which garbage feeding is permitted under this article must be kept 
free of collection of unused garbage and waste material in order that proper sani- 
tation and rat and fly control measures can be practiced as a further means of 
prevention of spread of disease in either animal or human health. 

1954 (48) 1710. 

§ 6-517. Inspection of premises; records. 

Any authorized representative of the department may enter at reasonable times 
upon any private or public property for the purpose of inspecting and investigating 
conditions relating to the heating of garbage to be fed to swine as required by this 
article. And any such representative may examine any records or memoranda per- 
taining to the feeding of garbage to swine. The department may require mainte- 
nance of records relating to the operation of equipment for and procedure of 
treating garbage to be fed to swine. Copies of such records shall be submitted to 
the department on request. 

1954 (48) 1710. 

118 



§ 6-518 1960 Cumulative Supplement § 6-604 

§ 6-518. Hogs prohibited on garbage dumps. 

No person shall permit hogs on any garbage dump. 
1954 (48) 1710. 

§ 6-519. Sale of raw garbage consuming hogs. 

It shall be unlawful for anyone to sell or offer for sale hogs which have con 
sumed any raw garbage within a period of thirty days prior to date of sale. 

1954 (48) 1710. 

Cross reference. — See § 6-511. 

§ 6-520. Administration and enforcement. 

The department shall administer and enforce the provisions of this article and 
may make and enforce all rules and regulations which the department may deem 
necessary to carry out the purposes of this article. 

1954 (48) 1710. 

§ 6-521. Penalties; injunctions. 

Any person who shall violate any of the provisions of, or who fails to perform 
any duty imposed by, this article, or who violates any rule or regulation pro- 
mulgated hereunder shall be guilty of a misdemeanor, and upon conviction thereof, 
shall be fined not more than one hundred dollars nor less than twenty-five dollars 
or imprisoned not to exceed thirty days. In addition thereto, such person may 
be enjoined from continuing such violation. Each day upon which such violation oc- 
curs shall constitute a separate violation. 

1954 (48) 1710. 

Article 7. 
Inspection, Transportation and Sale of Meats and Meat Products. 

§ 6-601. Municipalities and counties may provide for inspection of meats and 
meat products. 

Each municipal corporation may establish and maintain the inspection of meats 
and meat products at establishments located within its corporate limits, and each 
county may establish and maintain inspection of meats and meat products at such 
establishments not located in a municipal corporation but located within its 
boundaries. 

1956 (49) 17S6. 

Cross reference. — As to regulation of 
slaughter houses by municipalities, see § 
47-401. 

§ 6-602. Slaughterers may apply for permit to transport and sell products. 

Any person engaged in the slaughter of meat-producing animals within this 
State may make application to the State Veterinarian for a permit to transport, 
convey and sell his products at any place within the limits of the State. 

1956 (49) 1756. 

§ 6-603. Inspection of meat by applicants to be under supervision of veteri- 
narian. 

No permit shall be issued to any such establishment except when the meat in- 
spection is conducted under the supervision of a graduate veterinarian approved 
by the State Veterinarian. 

1956 (49) 1756. 

§ 6-604. Investigation of applicants ; issue of numbered permits. 

The State Veterinarian shall on receipt of such application cause to be made a 
thorough investigation of the sanitary conditions existing in such establishment, 

119 



§ 6-605 Code of Laws of South Carolina § 6-609 

the efficiency of the inspection provided and the manner in which the food prod- 
ucts of such establishment are slaughtered and prepared. If such establishment is 
found to be operating in accordance with the regulations of the board of trustees 
of The Clemson Agricultural College of South Carolina as provided for in this 
article, a numbered permit shall be issued to the person making application for same. 
1956 (49) 1756. 

§ 6-605. Numbered permit to be establishment's official State number; use to 
identify meats, etc. 

To each establishment complying with the provisions of this article the numbered 
permit shall be the establishment's official State number and such number may be 
used to identify all passed meats and meat products prepared in such establishment. 

1956 (49) 1756. 

§ 6-606. Revocation of permit. 

Such permit may be revoked by the State Veterinarian at any time when the 
establishment issued such permit violates any of the regulations prescribed for 
efficient inspection and sanitation. 

1956 (49) 1756. 

§ 6-607. Meat carcasses inspected and passed to be stamped. 

All meat carcasses inspected and passed in accordance with this article shall be 
branded with an approved stamp bearing the number of the establishment and the 
words "South Carolina Inspected and Passed." 

1956 (49) 1756. 

§ 6-608. Inspection fees. 

The officials of municipalities or counties in which inspection is maintained as 
authorized in § 6-601 may fix and collect fees for inspection of meat animals or 
meat products as may be necessary to the maintenance of such inspection but no 
further inspection charge shall be made within the State. 

1956 (49) 1756. 

§ 6-609. Rules and regulations. 

The board of trustees of The Clemson Agricultural College of South Carolina 
may make and adopt all necessary rules and regulations for the efficient inspection, 
preparation and handling of meats and meat products in such establishments and 
for the disposal of all condemned meats. Such rules and regulations shall govern 
the inspection of all meats and meat products at establishments operating under 
this article. 

1956 (49) 1756. 



Title 7. 
Appeals. 

Chap. 1. General Provisions, §§ 7-1 to 7-20. 

CHAPTER 1. 

General Provisions. 

Sec. Sec. 

7-1. Titles applicable to appeals in civil and 7-16. Definitions as to courts and court 

criminal actions. procedure. 

7-13. Judgment on appeal. 7-17 to 7-19. [Repealed.] 

7-20. Rules of construction. 

120 



§ 7-1 1960 Cumulative Supplement § 7-16 

§ 7-1. Titles applicable to appeals in civil and criminal actions. 

The only mode of reviewing a judgment or order in a civil or criminal action, 
other than the mode prescribed for particular matters in Titles 10, 15 and 17, shall 
be as prescribed by this Title. 

1942 Code § 771; 1932 Code § 771; Civ. P. '22 § 636; Civ. P. '12 § 374; Civ. P. '02 § 
335; 1870 (14) 349; 1960 (51) 1750. 

Effect of amendment. — The 1960 amend- 
ment added exceptions. 

§ 7-5. Appeal from verdicts prior to judgment. 

Applied in McCants v. West Virginia 
Pulp, etc., Co., 223 S. C. 467. 76 S. E. 2d 
614 (1953). 

§ 7-6. Notice of appeal stays execution of sentence. 

Section inapplicable to suspension of South Carolina State Highway Dept., 224 
driver's license under § 46-348.— Parker v. S. C. 263, 78 S. E. 2d 382 (1953). 

§ 7-8. When bail allowed. 

Supieme Court can grant bail in any bond in any case and can grant bail, in its 

case.— Supreme Court has power to issue discretion, where sentence exceeds ten 

writs and orders referred to in Art. 5, Sec. years, notwithstanding limitations of this 

4, of Constitution, and Legislature has no section. State v. Whitener, 225 S. C. 244, 81 
power to take away powers specifically S. E. 2d 784 (1954). 

granted to court by Constitution, and Su- Cited in Maxey v. Manning, 224 S. C. 

preme Court has inherent power to set 320, 78 S. E. 2d 633 (1953). 

§ 7-9. Amendment to cure failure to perfect appeal. 

Cited in Associated Petroleum Carriers 
v. Mutual Properties, 235 S. C. 195, 110 

5. E. 2d 861 (1959). 

§ 7-12. Review of intermediate orders affecting judgment. 

Applied in Johnson v. Abney Mills, 219 
S. C. 231, 64 S. E. 2d 641 (1951). 

§ 7-13. Judgment on appeal. 

Upon an appeal from a judgment or order the appellate court may reverse, affirm 
or modify the judgment or order appealed from as to any or all of the parties and 
may, if necessary or proper, order a new trial. When the judgment is reversed or 
modified the appellate court may make complete restitution of all property and 
rights lost by the erroneous judgment. 

1942 Code § 778; 1932 Code § 778; Civ. P. '22 § 643; Civ. P. '12 § 381; Civ. P. '02 § 
342; 1870 (14) 356; 1960 (51) 1751. 

Effect of amendment. — The 1960 amend- pellate court's power to matters mentioned 
ment eliminated the restriction on the ap- in the notice of appeal. 

§ 7-14. Certiorari to magistrate or municipal court. 

Quoted in State v. Butler, 230 S. C. 159, 
94 S. E. 2d 761 (1956). 

§ 7-16. Definitions as to courts and court procedure. 

As used in reference to courts and court procedure in this Title the following 
terms shall be interpreted as follows: 

(1) The words "real property" and "real estate" are coextensive with lands, 
tenements and hereditaments ; 

(2) The words "personal property" include money, goods, chattels, things in 
action and evidences of debt; 

(3) The word "property" includes real and personal property; and 

121 



§ 7-17 Code of Laws of South Carolina § 7-317 

(4) The word "clerk" signifies the clerk of the court in which the action is 
pending and, in the Supreme Court, the clerk of the county mentioned in the tide 
of the complaint or in another county to which the court may have changed the 
place of trial, unless otherwise specified. 

1942 Code § 897; 1932 Code § 897; Civ. P. '22 § 845; Civ P. '12 § 482; Civ. P. '02 § 
444; 1870 (14) 466: 1960 (51) 1926. 

Effect of amendment. — The 1960 amend- title, and added items (2), (3) and (4). 
ment restricted the definitions as to courts Cited in McDonald v. Welborn, 220 S. 

and court procedure rather than as to this C. 10, 66 S. E. 2d 327 (1951). 

§§ 7-17 to 7-19. Definition of personal property; definition of clerk. 
Repealed by A. & J. R. 1960 (51) 1926. 
Cross reference. — See now § 7-16. 

§ 7-20. Rules of construction. 

The rule of the common law that statutes in derogation of that law are to be 
strictly construed has no application to this Title or to Titles 10, 15, 17, 26 and 27. 

1942 Code § 902; 1932 Code § 902; Civ. P. '22 § 850; Civ. P. '12 § 487; Civ. P. '02 § 
448; 1870 (14) 470; 1960 (51) 1744. 

Effect of amendment. — The 1960 amend- 
ment added Titles 10, 15, 17, 26 and 27 
to the excepted provisions. 

CHAPTER 3. 

Appeals from Probate Court. 

§ 7-202. Appeal to be taken within fifteen days. 

The action of a probate court, although cord with this catchline in Code. See Pitts 
erroneous, ie valid until reversed. — In ac- v. Hanirick, 228 F. 2d 486 (1955). 

CHAPTER 4. 
Appeals to Circuit Courts in Other Cases. 

Article 1. 

Generally. 

§ 7-302. When and how appeal taken. 

Applied in Laughlin v. Livingston, 233 
S. C. 81, 103 S. E. 2d 741 (1958). 

§ 7-306. Return; when and how made and compiled. 

Irregularities may be waived. — Counsel's sentence of this section providing appellant 
participation without objection in bringing a remedy with respect to formal return if 
on hearing on appeal constituted waiver of he had felt himself to be aggrieved. Laugh- 
claimed irregularities in the proceedings, lin v. Livingston, 233 S. C. 81, 103 S. E. 
record, and hearing upon appeal, the last 2d 741 (1958). 

§ 7-316. Motions for new trial in appellate court; other procedural rules. 

In Laughlin v. Livingston, 233 S. C. 81, whether a ground for new trial under this 
103 S. E. 2d 741 (1958) the Court stated section was unavailable if not contained in 
that it was unnecessary to determine notice of appeal from the judgment. 

§ 7-317. Judgment on appeal. 

Stated in North Augusta v. Fennell, 221 
S. C. 112, 69 S. E. 2d 121 (1952). 



122 



§ 7-401 



1960 Cumulative Supplement 



§ 7-410 



CHAPTER 5. 
Appeals to Supreme Court. 



§ 7-401. In what cases. 

Multiplicity of appeals, like multiplicity 
of actions, is to be avoided where no in- 
justice results. In re Mutual Motors, 232 
S. C. 18, .100 S. E. 2d 538 (1957). 

§ 7-405. Notice of intent to appeal. 

I. IN GENERAL. 
Cited in Ex parte Orr, 110 F. Supp. 153 
(1952). 

II. NOTICE OF INTENTION 
TO APPEAL. 
Notice required by this section necessary 
to give Supreme Court jurisdiction. State 



Cited in State v. Cottingham, 224 S. C. 
181, 77 S. E. 2d 897 (1953). 



v. Wright, 228 S. C. 432, 90 S. E. 2d 492 
(1955). 

The failure to show entry of a judgment 
is not so essential, etc. 

In accord with paragraph under this 
catchline in Code. See McCants v. West 
Virginia Pulp, etc., Co., 223 S. C. 467, 76 
S. E. 2d 614 (1953). 



§ 7-406. Case and exceptions; objections; settlement. 



Cross references. — For cases relating to 
sufficiency of exceptions, see notes under 
Supreme Court Rule 4, section 6, see also 
notes under Circuit Court Rule 49. 
III. SERVICE. 

Where notice of appeal served before 
formal entry of judgment. — An appeal 
from an order of the court of common 
pleas dismissing exceptions to the Indus- 
trial Commission's award in a workmen's 
compensation case was properly dismissed 
for failure to serve a proposed case and 
exceptions within 30 days after service of 
notice of appeal, notwithstanding that there 
was no formal entry of judgment on the 
order, since § 72-357 does not require en- 
try of judgment by counsel in compensa- 
tion cases, and, if the order should be 
likened to a verdict, it was at once appeal- 
able under § 7-5. McCants v. West Vir- 

§ 7-409. Waiver by failure to perfect 

Four days notice of motion to dismiss 
is sufficient. — Four days notice of motion 
to dismiss an appeal for failure to perfect 
it, which is the usual practice, is sufficient. 
State v. Cottingham, 224 S. C. 181, 77 S. E. 
2d 897 (1953). 

Sufficiency of proof that appeal not per- 
fected.— See State v. Cottingham, 224 S. C. 
181, 77 S. E. 2d 897 (1953). 



ginia Pulp, etc., Co., 223 S. C. 467, 76 S. E. 
2d 614 (1953). 

Where case and exceptions not filed 
within time required by this section, duty 
of trial judge to dismiss the appeal where 
no effort made to obtain extension of time. 
Associated Petroleum Carriers v. Mutual 
Properties, 235 S. C. 195, 110 S. E. 2d 
861 (1959). 

Exceptions not served within time may 
be considered. — Although exceptions tech- 
nically not entitled to be considered be- 
cause not served within time, ends of 
justice not always best served by strict 
adherence to rules of procedure, and where 
record clearly discloses that there would 
be miscarriage of justice otherwise, Su- 
preme Court should not hesitate to grant 
relief necessary to prevent it. State v. Holl- 
man, 232 S. C. 489, 102 S. E. 2d 873 (1958). 

appeal. 

Jurisdiction of Supreme Court attaches 
only after appeal is perfected. — In accord 
with paragraph under this catchline in 
Code. See Pee Dee Farms Corporation v. 
Johnson, 227 S. C. 396, 88 S. E. 2d 254 
(1955). 

Stated in Associated Petroleum Carriers 
v. Mutual Properties, 235 S. C. 195, 110 
S. E. 2d 861 (1959). 



§ 7-410. Extending time for certain 

Power granted by this section should be 
exercised with reasonable discretion. In re 
Mutual Motors, 232 S. C, 18, 100 S. E. 
2d 538 (1957). 

Discretion not abused. — Where plaintiff 
recovered default judgment against auto- 
mobile and thereafter brought action 
against defendant for conversion, who then 
moved to vacate default judgment and 
served notice of appeal from order refusing 



steps in appeals. 

such motion, granting of extension of time 
to perfect appeal until 30 days after dis- 
position of conversion action was proper 
exercise of discretion under this section. 
In re Mutual Motors, 232 S. C 18, 100 
S. E. 2d 538 (1957). 

Cited in Associated Petroleum Carriers 
v. Mutual Properties, 235 S. C. 195, 110 
S. E. 2d 861 (1959). 



123 



Volume 1 



§ 7-411 Code of Laws of South Carolina § 8-2 

§ 7-411. Correction of inadvertent failure to perfect appeal. 

Cited in Associated Petroleum Carriers 
v. Mutual Properties, 235 S. C. 195, 110 
S. E. 2d 861 (1959). 

§ 7-416. How judgment to execute conveyance stayed. 

Cited in Purdy v. Moise. 223 S. C. 298, 
75 S. E. 2d 605 (1953). 

§ 7-422. When notice of appeal stays proceedings below. 

An appeal from an intermediate or in- as a stockholder in the corporation. John- 

terlocutory order does not divest the trial son v. Brandon Corp., 221 S. C. 160, 69 

court of jurisdiction to proceed in matters S. E. 2d 594 (1952). 

not involved in the appeal. Johnson v. Effect of failure to make or perfect ap- 

Brandon Corp., 221 S. C. 160, 69 S. E. 2d peal from order overruling demurrer. — It 

594 (1952). is true that an interlocutory appeal may 

An appeal from an order denying plain- be taken to the Supreme Court from an 

tiff stockholder the right to pre-trial ex- order overruling a demurrer, but the fail- 

amination of defendant corporation's presi- ure to make or perfect such an appeal docs 

dent stayed the proceedings in the court not affect the right of the Supreme Court 

below only in so far as they involved the to review the matter in connection with 

order appealed from, and did not preclude an appeal from the final judgment. Crotts 

the court below from hearing defendant's v. Fletcher Motor Co., 219 S. C. 204, 64 

motion to dismiss the action upon the S. E. 2d 540 (1951). 
ground that plaintiff had lost her status 

§ 7-425. Printing of testimony. 

Printing of testimony necessary for con- the lower court committed no error in di- 

sideration of respondent's additional sus- recting that the entire trial proceedings, 

taining grounds. — Where the Supreme testimony and evidence be printed by ap- 

Court could not have considered several pellant as the transcript of record. Her- 

issues raised under the additional sustain- ring v. Lawrence Warehouse Co., 222 S. 

ing grounds of respondent without the C. 226, 72 S. E. 2d 453 (1952). 
benefit of the testimony taken on the trial, 



Title 8. 
Banking, Commercial Paper and Finance. 

Chap. 1 . Money and Interest, § 8-8. 

2. State Board of Bank Control, §§ 8-52 to 8-62. 

3. Banks and Banking, §§ 8-104 to 8-309. 

4. Cash Depositories, § 8-418. 

5. Banks Doing a Safe Deposit or Trust Company Business, §§ 8-571 In 

8-588.23. 
5.1. Safe Deposit Boxes, §§ 8-591 to 8-600.3. 

6. Building and Loan Associations, Etc., §§ 8-600.100 to 8-606. 

7. Cooperative Credit Unions, §§ 8-701 to 8-727. 
7.1. Small Loan Companies, §§ 8-731 to 8-794.166. 

CHAPTER 1. 

Money and Interest. 
Sec. 

8-8. Usury not available to corporations in 
certain cases. 

§ 8-2. Legal rate of interest. 

Applied in Crook v. State Farm Mutual 
Automobile Insurance Co., 235 S. C. 452, 
112 S. E. 2d 241 (1960). 

124 



§ 8-3 1960 Cumulative Supplement § 8-52 

§ 8-3. Maximum interest rates; exceptions. 

Cross reference. — As to interest and I. GENERAL CONSIDERATION, 

charges on small loans, see §§ 8-731 et seq. Applied in Anderson v. Purvis, 220 S. 

C. 259, 67 S. E. 2d 80 (1951). 

§ 8-5. Usury. 

I. DEFINITIONS AND GENERAL price charged is in fact fixed for the pur- 

CONSIDERATION. chase of goods on credit with no intention 

The courts will not hesitate to pieroe or purpose of defeating the usury laws, 

the veil of any plan designed to evade the although the difference between the cash 

usury law and in doing so will disregard price and the credit price, if considered as 

the form and consider the substance of interest, amounts to more than the legal 

the transaction. Brown v. Crandall, 218 S. rate. But when the sale is in fact at an 

C. 124, 61 S. E. 2d 761 (1950). agreed cash price, and the form of sale on 

III. APPLICATION OF SECTION. credit is resorted to for the purpose of 

Usury cannot be predicated upon the evading the statute against usury, the trans- 
fact that property is sold on credit at a action will be deemed usurious. Brown v. 
higher price than would be charged if sold Crandall, 218 S. C. 124, 61 S. E. 2d 761 
for cash, so long as it appears that the (1950). 

§ 8-8. Usury not available to corporations in certain cases. 

No corporation lawfully organized to engage in business for profit and having an 
issued capital stock of forty thousand dollars or more as shown in its last annual 
report as filed with the Tax Commission, pursuant to § 65-621 et seq., shall by way 
of defense or otherwise avail itself of any of the provisions of §§ 8-2, 8-3, 8-5, 8-7 
or 8-9 to avoid or defeat the payment of any interest, discount or charges which it 
has agreed upon, allowed or contracted to pay in respect of any obligation for 
money borrowed, nor shall the lender be subject to § 8-9, where the loan is to a 
corporation. 

1942 Code § 6743; 1932 Code § 6743; Civ. C. '22 § 3642; Civ. C. '12 § 2521; 1902 (23) 
1022; 1959 (51) 355. 

Effect of amendment. — The 1959 amend- or charges, substituted obligations for 
ment made the section applicable to the money borrowed for bonds and added ex- 
above particularly denned corporations ception as to § 8-9 when loan is to a cor- 
rather than to all corporations, added §§ poration. 
8-2 and 8-9 as references, added discount 

CHAPTER 2. 

State Board of Bank Control. 

Sec. Sec. 

8-52. Appointment of members. 8-59. [Repealed.] 

8-57. Approval of charters of banks and 8-61. Initiation of criminal prosecution. 

building and loan associations; 8-62. Penalties for obstructing examiners. 

branch banks and associations. 

§ 8-52. Appointment of members. 

The State Board of Bank Control shall be composed of five members, one of 
whom shall be the State Treasurer as an ex-officio member, who shall be chair- 
man. The remaining four members shall be appointed by the Governor. Two shall 
be engaged in commercial banking and recommended by the State Bankers' As- 
sociation, one shall be engaged in the building and loan association business and 
recommended by the State Savings and Loan League and one shall be in the cash 
depositories business and recommended by the representatives of the cash deposi- 
tories affiliated with the State Bankers' Association. 

1942 Code § 7829; 1936 (39) 1484; 1953 (48) 357. 

Effect of amendment. — Formerly the This section is not unconstitutional as 

representative of the building and loan an illegal delegation of legislative power. 
association business was recommended by Flovd v. Thornton, 220 S. C. 414, 68 S. E. 
the State Bankers' Association instead of 2d 334 (1951). 
the State Savings and Loan League. 

125 



§ 8-56 Code of Laws of South Carolina § 8-62 

Nor does it violate the Federal Constitu- cash depositories associated with the State 

tion and anti-trust laws. — The requirement Bankers' Association does not render this 

of this section that appointments be made chapter violative of the Federal Constitu- 

by the Governor upon the recommendation tion and anti-trust laws. Floyd v. Gage, 192 

of the State Bankers' Association and the F. 2d 137 (1951). 

§ 8-56. Powers of Board. 

Rules and regulations promulgated under Regulations, Bank Control, State Board of, 
authority of this section, see Rules and in Volume 7. 

§ 8-57. Approval of charters of banks and building and loan associations; 
branch banks and associations. 

No bank or building and loan association shall be granted a charter by the 
Secretary of State unless and until the Board has approved the application therefor 
in writing. No branch bank or branch building and loan association shall be estab- 
lished without the approval in writing of the Board. Before any such application 
for the incorporation of a bank or building and loan association or the establish- 
ment of a branch thereof shall be approved, the Board shall make an investigation 
to determine whether or not the applicants have complied with all the provisions 
of law ; whether, in the judgment of the Board, they are qualified to operate such 
an institution and whether the establishment of such bank or building and loan 
association or of such branch thereof would serve the public interest, taking into 
consideration local circumstances and conditions at the place where such bank, 
building and loan association or branch thereof proposes to do business. 

1942 Code § 7829-2; 1936 (39) 1484; 1956 (49) 2073. 

Effect of amendment. — The 1956 amend- This section is constitutional and effec- 

ment required approval of Board before tive in all respects. Floyd v. Thornton, 
establishment of branch building and loan 220 S. C. 414, 68 S. E. 2d 334 (1951). 
association. 

§ 8-59. Compensation of chief examiner and assistants. 
Repealed by A. & J. R. 1953 (48) 357. 

§ 8-61. Initiation of criminal prosecution. 

The report shall be considered by the Board at its next meeting and should the 
Board conclude that the matters covered in such report of the chief examiner do 
constitute an apparent violation of existing statutes or rules or regulations of the 
Board, then the Board may direct the chief examiner to file a detailed written 
/eport of such apparent criminal violations of existing statutes or rules or regu- 
lations with the grand jury for the county in which the apparent criminal viola- 
tions were committed, or direct him to make affidavit before a magistrate and ob- 
tain a warrant. Tbe Board may direct the chief examiner to file a copy of the de- 
tailed written report of the apparent criminal violations with the solicitor for the 
judicial circuit in which the county in which the apparent criminal violations were 
committed is located. 

1942 Code § 7829-12; 1937 (40) 219; 1953 (48) 357. 

Effect of amendment. — The latter por- correct obvious mechanical errors in the 
tion of the section has been rewritten to section as printed in the 1952 Code. 

§ 8-62. Penalties for obstructing examiners. 

Any person who obstructs or interferes with the chief examiner or any of his 
assistants or agents in any way in performance of his duties, shall, upon convic- 
tion, be deemed guilty of a misdemeanor, and shall be subject to imprisonment 
for not more than one year, or a fine of not more than one thousand dollars, or both, 
in the discretion of the court. 

1942 Code § 7874-4; 1941 (42) 46; 1953 (48) 357. 

Effect of amendment. — The latter por- correct obvious mechanical errors in the 
tion of the section has been rewritten to section as printed in the 1952 Code. 

126 



8-104 



1960 Cumulative Supplement 



§ 8-111 



CHAPTER 3. 
Banks and Banking. 



Article 1. 
General Provisions. 



Sec. 

8-170. 



8-172. 
8-178. 



8-221. 

8-222. 
8-223. 
8-225. 
8-237. 



8-245. 



8-308. 
8-309. 



Article 6. 
Deposits. 

Acceptance and payment of deposits 
by minors. 

Receipt of deposits after knowledge 
of insolvency. 

Penalty; jurisdiction of magistrate. 
Article 9. 
Loans and Investments. 

General power to make loans; ac- 
counts with other banks. 

Loans on real estate. 

Personal or instalment loans. 

Maximum amounts of loans. 

Investment in farm loan bonds; ac- 
countability for interest thereon. 

Article 10. 
Acting as Fiduciary. 

Liability of banks and trust com- 
panies acting as trustee of a 
partnership interest for minor 
beneficiaries. 

Article 14. 

Other Methods of Liquidation. 

Receivers to file report every six 
months. 

Compensation of receivers. 



Sec. 

8-104. Officers and employees to be bonded. 

8-106. Branch bank to identify itself. 

8-111. [Repealed.] 

8-112. Retention by banks, trust companies 
and certain national banking 
associations of their records. 

8-113. Regulations classifying records kept 
by such institutions and fixing 
retention times. 

8-114. Destruction of such records retained. 

8-115. Microphotographic reproduction of 
records in custody of such in- 
stitutions; evidence. 

8-116. Application of §§ 8-112 to 8-115. 
Article 3. 
Certain Powers. 

8-131. General powers of banking corpora- 
tion. 

Article 4. 
Capital and Surplus Stock. 

8-145. Capital and surplus required for 
branch banks. 

8-148. Issue of preferred stock. 

8-149. [Repealed.] 

8-154. Earnings set aside for surplus; re- 
serve against deposit. 

Article 1. 
General Provisions. 
§ 8-104. Officers and employees to be bonded. 

All active officials and employees of any State bank shall be bonded. The bonds 
shall be reviewed and approved or disapproved in writing annually by its board of 
directors. 

1942 Code § 7850; 1932 Code §§ 1351, 7831; Civ. C. '22 § 3973; Civ. C. '12 § 2638; Civ. 
C. '02 § 1762; G. S. 1348; R. S. 223, 1460; Cr. C. '22 § 241; Cr. C. '12 § 346; Cr. C. '02 
§ 259; 1877 (16) 232; 1923 (33) 156; 1960 (51) 1675. 

Effect of amendment. — The 1960 amend- 
ment eliminated provisions for holding 
bonds and added the second sentence. 

§ 8-106. Branch bank to identify itself. 

Every branch bank shall indicate on its stationery, checks, drafts, notes, signs, 
advertisements and publications that it is a branch bank and show the name and 
place of business of the parent bank or shall be identified in such manner as is 
prescribed for national banks. 

1942 Code § 7868; 1932 Code § 7851; Civ. C. '22 § 3984; Civ. C. *12 § 2647; 1911 (27) 
4; 1920 (31) 739; 1923 (33) 191; 1933 (38) 296; 1936 (39) 1484; 1958 (50) 1713. 

Effect of amendment. — The 1958 amend- scribed for national banks, 
ment provided for identification as pre- 

§ 8-111. Photograph, micropbotograph or film records. 

Repealed by A. & J. R. 1957 (50) 179. 
Cross reference. — See now § 26-103.1. 



127 



§ 8-112 Code of Laws of South Carolina § 8-115 

§ 8-112. Retention by banks, trust companies and certain national banking 
associations of their records. 

Every bank shall retain its business records for such periods as are or may be 
prescribed by or in accordance with the terms of §§ 8-112 to 8-116. Each bank 
shall retain permanently the minute books of meetings of its shareholders and 
directors, its capital stock ledger, its daily statements of condition, its general 
journal, its investment ledger, its copies of bank examination reports, and all 
records which the State Board of Bank Control shall, in accordance with the 
terms of this law, require to be retained permanently. All other bank records shall 
be retained for such periods as the Board shall, in accordance with the terms of 
§§ 8-112 to 8-116, prescribe. 

1960 (51) 1673. 

Editor's note. — See § 8-116, which makes panies and certain national banking associa- 
§§ 8-112 to 8-115 applicable to trust com- tions. 

§ 8-113. Regulations classifying records kept by such institutions and fixing 
retention times. 

The Board shall from time to time issue regulations classifying all records kept 
by banks and prescribing the period for which records of each class shall be re- 
tained. The periods may be permanent or for a lesser term of years. The regulations 
may from time to time be amended or repealed. Prior to issuing any such regulation, 
the Board shall consider : 

(1) Actions at law and administrative proceedings in which the production of 
bank records might be necessary or desirable; 

(2) State and Federal statutes of limitation applicable to such actions or 
proceedings ; 

(3) The availability of information contained in bank records from other 
sources; and 

(4) Such other matters as the Board shall deem pertinent, in order that its 
regulations will require banks to retain their records for as short a period as is 
commensurate with the interests of bank customers and shareholders and of the 
people of this State in having bank records available. 

1960 (51) 1673. 

§ 8-114. Destruction of such records retained. 

Any bank may dispose of any record which has been retained for the period 
prescribed by or in accordance with the terms of §§ 8-112 to 8-116 for retention 
of records of its class, and shall thereafter be under no duty to procure such record 
in any action or proceeding. Whether or not in any given case destruction of 
such records prior to the minimum retention periods so prescribed constitutes 
negligence shall remain a question of fact to be determined by all circumstances in 
that case, and such earlier destruction shall not per se constitute negligence and 
no presumption of negligence shall arise therefrom. 

1960 (51) 1673. 

§ 8-115. Microphotographic reproduction of records in custody of such in- 
stitutions; evidence. 

Any bank may cause any record at any time in its custody to be reproduced by 
the microphotographic process and any reproduction so made shall have the same 
force and effect as the original thereof and be admitted in evidence equally with the 
original, as is provided by § 26-103.1 on April 21 1960. This section shall not be 
construed to require the production of a record or a microphoto film of a record 
authorized to be restroyed under regulations issued pursuant to §§ 8-112 to 8-116. 

1960 (51) 1673. 

128 



§ 8-116 1960 Cumulative Supplement § 8-154 

§ 8-116. Application of §§ 8-112 to 8-115. 

Sections 8-112 to 8-115 shall be applicable to banks and trust companies 
chartered under the laws of this State, and to the extent that they are not in 
contravention of any law or regulation of the United States, they shall apply and 
inure to the benefit of national banking associations doing business in this State. 

1960 (51) 1673. 

Article 3. 

Certain Powers. 

§ 8-131. General powers of banking corporation. 

* * * 

(1) Receive and pay out the lawful currency of the country; 

1942 Code § 7843; 1932 Code § 7862; Civ. C. '22 § 3992; Civ. C. *12 § 2654; Civ. C. 
'02 § 1774; R. S. 1538; 1887 (19) 860; 1913 (28) 37; 1919 (31) 41; 1953 (48) 357. 

Effect of amendment. — The amendment "the." Only subparagraph (1) of the sec- 
eliminated the word "of which formerly tion was affected by the amendment 
appeared between the words "out" and 

Article 4. 
Capital and Surplus Stock. 
§ 8-145. Capital and surplus required for branch banks. 

For each branch bank that is established the parent bank must have subscribed 
and paid in a total unimpaired capital of at least twenty-five thousand dollars above 
the minimum requirements set forth in § 8-144 and at least the amount of capital 
stock and surplus that would be required of the parent and all of its branches if 
each were an independent bank. 

1942 Code §§ 7831, 7832; 1932 Code §§ 7835, 7836; 1926 (34) 953; 1928 (35) 1301; 1930 
(36) 1353; 1936 (39) 1484; 1953 (48) 357. 

Effect of amendment. — The amendment 
substituted the word "in" for the word "it" 
after the word "paid." 

§ 8-148. Issue of preferred stock. 

Notwithstanding any other provisions of law, any banking institution organized 
under the laws of this State may, with the approval of the Chief Bank Examiner 
and by vote of the stockholders owning a majority of the stock of such institution, 
upon not less than ten days' notice given by registered mail pursuant to action 
taken by its board of directors, issue preferred stock of one or more classes in 
such amount and with such par value as shall be approved by the Examiner and 
may make such amendments to its articles of association as may be necessary for 
this purpose. In the case of any newly organized banking institution which has not 
yet issued common stock, the requirement of notice to and vote of stockholders shall 
not apply. 

No issue of preferred stock shall be valid until the par value of all stock so issued 
shall be paid in. 

1942 Code § 7835; 1935 (39) 493; 1960 (51) 1739. 

Effect of amendment. — The 1960 amend- 
ment added the last paragraph. 

§ 8-149. Preferred stock not valid until fully paid for. 
Repealed by A. & J. R. 1960 (51) 1739. 
Cross reference. — See now § 8-148. 

§ 8-154. Earnings set aside for surplus ; reserve against deposit. 

Every bank or banking institution shall set aside to its surplus account not less 
than one-tenth of its annual net earnings each year until its surplus shall be equal 

129 



§ 8-170 Code of Laws of South Carolina § 8-177 

to at least twenty-five per cent of its capital stock. It shall also retain and maintain 
at all times, either in cash or as cash in banks, three per cent of its time deposits 
and seven per cent of its checking deposits. Cash items of longer standing than ten 
days may not constitute a part of such reserve to be so set aside. The State Board 
of Bank Control shall enforce the provisions of this section. 

1942 Code § 7844; 1932 Code § 7863; Civ. C. '22 § 3993; Civ. C. '12 § 2655; 1909 (26) 
81; 1923 (33) 159; 1933 (38) 296; 1936 (39) 1484; 1953 (48) 357. 

Effect of amendment. — The amendment word "earnings" in the next to the last 
substituted the word "reserve" for the sentence. 

Article 6. 
Deposits. 
§ 8-170. Acceptance and payment of deposits by minors. 

A bank may accept deposits of and pay out deposits upon a check of a minor 
with the same effect as if dealing with a person of full legal capacity. 
1960 (51) 1765. 

§ 8-171. Payment of deposits made in name of two persons. 

Cited in Davis v. Davis, 223 S. C. 182, 
75 S. E. 2d 46 (1953); Hawkins v. Thack- 
ston, 224 S. C. 445, 79 S. E. 2d 714 (1954). 

§ 8-172. Receipt of deposits after knowledge of insolvency. 

It shall be a misdemeanor for any president, director, manager or cashier or 
other officer of any banking institution to receive any deposit or trust or create 
any debts of such corporation after he shall become aware that such corporation 
is insolvent. Every officer of such failing corporation shall become personally liable 
to the amount of any such deposit or trust received by him or with his knowledge 
or assent in any such case to the person thereby damaged, whether criminal pros- 
ecution be made or not. And all persons convicted for misdemeanor, as herein 
provided, shall be punished by imprisonment for a term of not less than one year 
and by a fine of not less than one thousand dollars. 

1942 Code § 7850; 1932 Code §§ 1351, 7831; Civ. C. '22 § 3973; Civ. C. '12 § 2638; Civ. 
C. '02 § 1762; G. S. 1348; R. S. 223, 1460; Cr. C. '22 § 241; Cr. C. '12 § 346; Cr. C. '02 § 
259; 1877 (16) 232; 1923 (33) 156; 1960 (51) 1602. 

Effect of amendment. — The 1960 amend- 
ment substituted misdemeanor for felony. 

§ 8-176. Drawing and uttering fraudulent check. 

If one issues check with no intention to is used as being something of value and 

defraud, he would not be criminally liable. if person owes a debt and issues check in 

Atty. Gen. Op. Aug. 12, 1955. payment thereof and at same time secures 

Check given to pay a debt is not a basis further credit, it would be possible to con- 

for criminal prosecution. Atty. Gen. Op. vict. Atty. Gen. Op. Aug. 12, 1955. 
Aug. 12, 1955. Applied in State v. Jenkins, 222 S. C. 

Meaning of credit.— Something of value 359, 72 S. E. 2d 829 (1952); State v. Sutton, 

must have passed from drawee to drawer 228 S. C. 314, 89 S. E. 2d 874 (1955). 
at time check issued, and the word "credit" 

§ 8-177. Prima facie evidence of such fraud. 

Section creates rule of evidence.— In ac- notice may be considered by jury in re- 
cord with paragraph under this catchline buttal of statutory presumption of fraudu- 
in Code. See State v. Sutton, 228 S. C. 314, lent intent in the uttering of the checks; 
89 S. E. 2d 874 (1955). and such intent is a necessary ingredient 

If one issues check with no intention to of the crime. The fact of the bankruptcy 

defraud, he would not be criminally liable. should be admitted in evidence as tending 

Atty. Gen. Op. Aug. 12, 1955. to rebut the presumption which was created 

Effect of bankruptcy. — Inability to pay by this section, in view of State's reliance 

resulting from bankruptcy subsequent to upon it. State v. Sutton, 228 S. C. 314, 89 

giving the checks and prior to written S. E. 2d 874 (1955). 

130 



§ 8-178 1960 Cumulative Supplement § 8-225 

§ 8-178. Penalty; jurisdiction of magistrate. 

Any person so convicted shall be punished by a fine or imprisonment, in the 
discretion of the court. If the amount of the check, draft or order be less than 
one hundred dollars, the offense may be triable in a magistrate's court. 

1942 Code § 1167; 1932 Code § 1167; Cr. C. '22 § 60; Cr. C. '12 § 208; 1909 (26) 21; 
1914 (28) 489: 1923 (33) 120; 1954 (48) 1444; 1960 (51) 1929. 

Effect of amendments. — The 1954 amend- The 1960 amendment increased the 

ment increased amount of check from less amount of check triable in magistrate court 
than twenty dollars to less than seventy-five from less than $75.00 to less than $100.00. 
dollars triable in magistrate's court. Applied in State v. Sutton, 228 S. C. 314, 

89 S. E. 2d 874 (1955). 

Article 9. 
Loans and Investments. 

§ 8-221. General power to make loans ; accounts with other banks. 

A bank may make loans on negotiable paper for any period not exceeding twelve 
months and may also open an account and give a credit to any other bank in this 
or any other State. 

1942 Code § 7853; 1932 Code § 7829; Civ. C. '22 § 3968; Civ. C. '12 § 2633; Civ. C. '02, 
§ 1757; G. S. 1343; R. S. 1455; 1817 (8) 36; 1938 (40) 1635; 1939 (41) 235; 1960 (51) 1672. 

Effect of amendment. — The 1960 amend- accounts and give credits to banks in this 
ment eliminated words of qualifications as State, 
to banks and authorized banks to open 

§ 8-222. Loans on real estate. 

Loans secured by first liens on improved real estate can be made only up to sixty 
per cent of the appraised value of the real estate and for a term of not longer than 
ten years. The principal amount of such real estate loans shall be amortized at the 
rate of at least five per cent per annum. 

1942 Code § 7853; 1932 Code § 7829; Civ. C. '22 § 3968; Civ. C. '12 § 2633; Civ. C. 
'02 § 1757; G. S. 1343; R. S. 1455; 1817 (8) 36; 1938 (40) 1635; 1939 (41) 235; 1955 (49) 
253. 

Effect of amendment. — The amendment tizing principal was changed to five percent 
increased the loan term to ten years from from ten percent, 
five years and the minimum rate for amor- 

§ 8-223. Personal or installment loans. 

So called personal or installment loans when secured by chattels or endorsements 
may be made for a period not exceeding eighteen months or for such length of 
time as may be prescribed for similar loans for national banks if the note or notes 
are payable in equal monthly installments or as nearly equal as the principal amount 
allows, except that in the case of such loans as are secured by chattel mortgages on 
farm implements or equipment, such installment payments may be monthly, 
quarterly, semiannually or annually. 

1942 Code § 7853; 1932 Code § 7829; Civ. C. '22 § 3968; Civ. C. '12 § 2633; Civ. C. 
'02 § 1757; G. S. 1343; R. S. 1455; 1817 (8) 36; 1938 (40) 1635; 1939 (41) 235; 1949 (46) 
164; 1955 (49) 254. 

Effect of amendment. — The amendment gages on farm implements or equipment 
excepted loans secured by chattel mort- from the monthly installment payment plan. 

§ 8-225. Maximum amounts of loans. 

The total liabilities to any bank of any person for money borrowed, including in 
the liabilities of a company or firm the liabilities of the several members thereof, 
shall at no time exceed one-tenth part of the amount of the capital stock of any such 
bank actually paid in and its surplus, except by two-thirds vote of the directors of 
the bank, in which case such liabilities other than those mentioned in § 8-228 may 
be extended to fifteen per cent of the capital stock actually paid in and the surplus 

131 



§ 8-232 Code of Laws of South Carolina § 8-245 

of such bank. Such liabilities may be extended by an additional amount not to 
exceed thirty-five per cent of the capital stock actually paid in and the surplus of 
such bank when such additional loans are secured by direct obligations of the 
United States Government or direct obligations of this State. The discount of bills 
of exchange drawn in good faith against existing values and the discount of com- 
mercial or business paper shall not be considered as money borrowed. 

1942 Code § 7857; 1932 Code § 7869; Civ. C. '22 § 3999; Civ. C. '12 § 2661; Civ. C. "02 
5 1776; R. S. 1539a; 1897 (22) 463; 1923 (33) 159; 1936 (39) 1495; 1955 (49) 258. 

Effect of amendment. — The amendment 
added the second sentence. 

§ 8-232. Interest industrial hanks may charge. 

Lending institution of nature prescribed visions of Chap. 2 of Title 12 may charge 

in this section may be organized so long interest rates as provided in this section on 

as terms "bank" or "banking" not used in advances of sums in excess of $200 made in 

connection therewith and there is full com- regular course of its business. Atty. Gen. 

pliance with other provisions of this sec- Op., Feb. 9, 1959. 
tion, and a corporation created under pro- 

§ 8-237. Investment in farm loan bonds ; accountability for interest thereon. 

Any savings bank, banking institution or trust company organized under the 
laws of this State may invest in or lend money on the security of Federal farm 
loan bonds issued by any Federal land bank pursuant to the Federal Farm Loan 
Act as amended, bonds issued by the Federal Farm Mortgage Corporation pur- 
suant to the provisions of an act of Congress known as the "Federal Farm Mort- 
gage Corporation Act," Federal Intermediate Credit Bank debentures issued pur- 
suant to the Federal Farm Loan Act as amended and debentures issued by the 
Central Bank for Cooperatives and regional banks for cooperatives organized under 
the Farm Credit Act of 1933, or by any of such banks. No such savings bank, 
banking institution or trust company organized under the laws of this State shall 
account for a greater rate of interest than the amount actually received on such 
investment. 

1942 Code § 9049; 1932 Code § 9049; Civ. C. '22 § 5461; 1918 (30) 163; 1919 (31) 133; 
1934 (38) 1493; 1952 (47) 1893; 1955 (49) 152. 

Effect of amendments. — The 1952 amend- The 1955 amendment added to permis- 

ment added to the classes of permissible sible investments debentures issued by 
investments Federal Intermediate Credit Central Bank for Cooperatives and regional 
Bank debentures and debentures issued by banks for cooperatives, or by any of such 
the Central Bank for Cooperatives. banks. 

Article 10. 
Acting as Fiduciary. 
§ 8-242. Bonds of such fiduciary. 

Cross reference. — As to liability of banks partnership interest for minor beneficiaries, 
and trust companies acting as trustee of a see § 8-245. 

§ 8-245. Liability of banks and trust companies acting as trustee of a partner- 
ship interest for minor beneficiaries. 

Any banking corporation or trust company authorized under this article to act as 
a fiduciary which acts or is acting as trustee of a partnership interest for minor 
beneficiaries shall not be liable as a partner except to the extent of the assets in the 
trust, the provisions of §§ 52-25, 52-26, 52-27, 52-28 and 52-29 to the contrary 
notwithstanding. Nothing in this section shall waive, limit or restrict the duty and 
liability otherwise of the bank as trustee of a partner's interest. 

1955 (49) 321. 

132 



§ 8-308 



1960 Cumulative Supplement 



§ 8-418 



Article 14. 
Other Methods of Liquidation. 
§ 8-308. Receivers to file report every six months. 

A receiver or liquidating agent appointed as provided by law shall every six 
months during the term of his administration file with the clerk of court of the 
countv in which the bank is located a list of receipts for that period showing the 
sources from which such receipts have been derived and shall at the same time file 
a list of the expenditures for the same period, itemized so as to show the nature 
of such expenditures and the balance of cash on hand. 

1942 Code § 7872; 1932 Code § 7855; 1929 (36) 199; 1930 (36) 1235; 1931 (37) 291; 
1933 (38) 296; 1935 (39) 46; 1936 (39) 1484; 1960 (51) 1676. 

Effect of amendment. — The 1960 amend- agent to be as provided by law rather than 
ment provided for receiver or liquidating under provisions of § 7855. 

§ 8-309. Compensation of receivers. 

All receivers appointed as provided by law shall receive in full for their services 
in the liquidation of the affairs of the bank two per cent on all moneys received and 
a like amount on all moneys paid out by them on all sums up to fifty thousand 
dollars and two and one-half per cent on all sums received and paid out above 
fifty thousand dollars. 

1942 Code § 7872; 1932 Code § 7855; 1929 (36) 199; 1930 (36) 1235; 1931 (37) 291; 
1933 (38) 296; 1935 (39) 46; 1936 (39) 1484; 1960 (51) 1677. 

Effect of amendment. — The 1960 amend- agent to be as provided by law rather than 
ment provided for receiver or liquidating under provisions of § 7855. 

CHAPTER 4. 

Cash Depositories. 
Sec. 
8-418. [Repealed.] 

§ 8-418. Photograph, microphotograph or film records. 

Repealed by A. & J. R. 1957 (50) 179. 
Cross reference. — See now § 26-103.1. 

CHAPTER 5. 

Banks Doing a Safe Deposit or Trust Company Business. 

Article 1. Sec. 

Banks Doing a Safe Deposit Business. 8-588.12. 

8-571 to 8-580. [Repealed.] 8-588.13. 

Article 3. 

Common Trust Funds. 8-588.14. 

8-588.1. Definitions. 
8-588.2. Trust institutions may establish 

and administer common trust 8-588.15. 

funds. 
8-588.3. Establishment and maintenance to 8-588.16. 

be in accordance with plan. 8-588.17. 

8-588.4. Required terms of the plan. 
8-588.5. Optional term9 of the plan. 8-588.18. 

8-588.6. Amendments to plan. 

8-588.7. Management and control of fund. 8-588.19. 
8-588.8. Trust institution not to have in- 8-588.20. 

terest in fund. S-588.21. 

8-588.9. Trust institutions as fiduciaries may 8-588.22. 

invest in the fund. 
8-588.10. Admittance and withdrawal of 8-588.23. 

estate assets in fund. 
8-588.11 Certificate of participation in fund; 

interest represents in fund. 



Maximum amount an estate may 
invest in funds of an institution. 

Fund investment of estate assets 
restricted to legal investments. 

Fund investment of estate assets 
authorized therefor or for non- 
legal investments. 

Institutional records of invest- 
ments in fund. 

Valuation of securities in fund. 

Institutional fees prohibited; ex- 
pense reimbursement permitted. 

Mistakes made in good faith and 
in exercise of due care. 

Annual audit of fund. 

Court accountings of fund. 

Exempt from income taxes. 

Article no prohibition on other 
such funds. 

Invalidity of article and §§ 65- 
257.11 and 65-299.1. 



133 



§ 8-571 Code oe Laws of South Carolina § 8-588.1 

Article 1. 

Banks Doing a Safe Deposit Business. 

§§ 8-571 to 8-580. Banks doing a safe deposit business. 

Repealed by A. & J. R. 1952 (47) 1932. 

Editor's note. — For new legislation on Chapter 5.1, §§ 8-591 to 8-600.3. 
the subject of safe deposit boxes, see 

§ 8-581. Examination. 

Cross reference. — As to records to be 
kept by trust companies, see §§ 112 to 8-116. 

Article 2. 
Banks Doing a Trust Company Business. 
§ 8-583. Funds to be secured. 

Cross reference. — Security when trust eral deposit insurance, see § 1-62. 
funds deposited in bank protected by Fed- 

§ 8-585. Investments to be kept separate. 

Cross reference. — As to establishment by trust institutions and investments therein 
and maintenance of common trust funds of estate assets, see §§ 8-588.1 et seq. 

Article 3. 

Common Trust Funds. 

§ 8-588.1. Definitions. 

The following terms used in this article shall have the meanings ascribed to them 
in this section unless the context indicates otherwise : 

(1) The term "trust institution" means any State bank, any national bank or 
any trust company, authorized to act in a fiduciary capacity in this State, and under 
the supervision of the Comptroller of the currency of the United States, the 
Federal Reserve System or the State Board of Bank Control. 

(2) The term "fiduciary" means any trust institution or person acting in the 
capacity of executor, administrator, administrator with the will annexed, adminis- 
trator de bonis non, guardian, testamentary trustee, trustee appointed by any court 
and trustee under any written agreement, declaration or instrument of trust, either 
solely or together with others. 

(3) The term "common trust fund" means a fund maintained by a trust institu- 
tion, exclusively for the collective investment and reinvestmnt of moneys con- 
tributed thereto by the institution in its capacity as a fiduciary or cofiduciary and 
established, maintained and administered pursuant to the requirements of this 
article. 

(4) The term "estate" means any trust, estate or fund administered by a trust 
institution in a fiduciary capacity. 

(5) The term "participation" means the interest of a participating estate in the 
common trust fund. 

(6) The term "security" means all types of property in which the trust institution 
may invest the assets of the common trust fund. 

(7) The term "certificate" means a certificate of participation issued by the 
trust institution for any estate whose funds are invested in any such common trust 
fund. 

1955 (49) 538. 

134 



§ 8-588.2 1960 Cumulative Supplement § 8-588.7 

§ 8-588.2. Trust institutions may establish and administer common trust 
funds. 

Any trust institution may establish, maintain and administer one or more com- 
mon trust funds. 
1955 (49) 538. 

§ 8-588.3. Establishment and maintenance to be in accordance with plan. 

Each common trust fund shall be established and maintained in accordance with 
a written plan, referred to herein as the plan, approved by resolution of the board of 
directors of the trust institution and approved in writing by competent legal counsel. 
The provisions of the plan shall control all participations therein and the rights 
and benefits of all persons interested in such participations as beneficiaries or 
otherwise. A copy of the plan shall be available at the principal office of the trust 
institution for inspection during all regular business hours to any person having an 
interest in a participation in the common trust fund. 

1955 (49) 538. 

§ 8-588.4. Required terms of the plan. 

The plan shall provide that the common trust fund shall be administered under 
the laws of this State and of the United States, and in conformity with the rules and 
regulations promulgated from time to time under authority of such laws, and shall 
contain full and detailed provisions, not inconsistent with the provisions of this 
article, as to (a) the manner in which the common trust fund is to be operated, 
(b) the investment powers with respect to the common trust fund, (c) the alloca- 
tion and apportionment of income, profits and losses, (d) the terms and conditions 
governing the admission or withdrawal of investments or participations in the 
common trust fund, (e) the auditing and settlement of accounts of the trust 
institution with respect to the common trust fund, (f) the basis and method of 
valuing securities in the common trust fund, (g) the basis upon which the common 
trust fund may be terminated and (h) such other matters as may be necessary 
to define clearly the rights of participants in the common trust fund. 

1955 (49) 538. 

§ 8-588.5. Optional terms of the plan. 

The plan may provide for (a) the amortization of the premiums upon bonds 
or other obligations, (b) the disposition of discounts and profits and the allocation 
of the same or the apportionment of the same between principal and income ac- 
counts, (c) the establishment and maintenance of a reserve out of current interest 
from mortgage investments against which realized losses on mortgages mav be 
charged and (d) other like matters. 

1955 (49) 538. 

§ 8-588.6. Amendments to plan. 

The plan may be amended from time to time by the fiduciary with the approval of 
the board of directors of the trust institution and approved in writing by competent 
counsel. Any such amendment shall be filed with the original plan, together with a 
certified copy of the resolution of the board of directors of the trust institution 
approving the same. 

1955 (49) 538. 

§ 8-588.7. Management and control of fund. 

The trust institution shall have the exclusive management and control of each 
common trust fund administered by it and the sole right at any time to sell, convert, 
exchange, transfer or otherwise change or dispose of the assets comprising the same. 

135 



§ 8-588.8 Code op Laws of South Carolina § 8-588.12 

The ownership of such assets shall he solely in the trust institution as fiduciary and 
shall be considered as assets held by it as fiduciary. 
1955 (49) 538. 

§ 8-588.8. Trust institution not to have interest in fund. 

A trust institution shall not invest any of its own funds in a common trust fund 
administered by it, and if the trust institution, because of a creditor relationship or 
for any other reason, acquires any interest in a participation in such common trust 
funds, the participation shall be withdrawn on the first date on which such with- 
drawal can be effected. 

1955 (49) 538. 

§ 8-588.9. Trust institutions as fiduciaries may invest in the fund. 

Any trust institution in its capacity as a fiduciary or cofiduciary, whether such 
fiduciary capacity arose before or is created after May 11 1955, may invest funds 
which it lawfully holds for investment in such capacity in participations in one or 
more common trust funds, if such investment is not prohibited by the instrument, 
judgment, decree or order creating the fiduciary relationship, and if, in the case of 
cofiduciaries, the trust institution procures the consent of its cofiduciary to such 
investment. 

1955 (49) 538. 

§ 8-588.10. Admittance and withdrawal of estate assets in fund. 

The trust institution shall invest the moneys of an estate in such common trust 
fund by adding the same thereto, and by apportioning a participation therein to such 
estate in the proportion that the moneys of the estate added thereto bears to the 
aggregate value of all the securities of such fund at the time of such investment, 
including in such securities the moneys of the estate so added. The withdrawal of 
a participation of such common trust fund shall be on the basis of its proportionate 
interest in the aggregate value of all the securities of such fund at the time of such 
withdrawal, as hereinafter provided. The participating interest of any estate in such 
common trust fund may, from time to time, be withdrawn in whole or in part by 
the trust institution, and shall be so withdrawn within a period of three months 
following the written request so to do of any person acting with the trust institution 
in a fiduciary capacity. 

Upon such withdrawals, the trust institution may make distribution in cash or 
ratably in kind, or partly in cash or partly in kind, but all such distribution as of 
any one time shall be made on the same basis. 

1955 (49) 538. 

§ 8-588.11. Certificate of participation in fund; interest represents in fund. 

A certification of participation may be issued for each investment or participation 
in a common trust fund. Such certificate shall state on its face that it is issued 
without guarantee by the issuing trust institution of the payment of either principal 
or interest, that it will be paid only when funds become available out of the 
assets comprising the common trust fund. No such certificate shall be issued in 
any form which purports to be negotiable or assignable. No fiduciary account 
owning or holding an investment or participation in a common trust fund, or any 
certificate of participation therein, shall be deemed to have individual ownership of 
any asset in such common trust fund, but shall be deemed to have only a propor- 
tionate undivided interest in the common trust fund. 

1955 (49) 538. 

§ 8-588.12. Maximum amount an estate may invest in funds of an institution. 

The amount of moneys of any one estate which may be invested in any one or 
more such common trust funds as may be maintained by a trust institution shall not 

136 



§ 8-588.13 1960 Cumulative Supplement § 8-588.16 

exceed one hundred thousand dollars or such smaller amount as may from time 
to time be prescribed for such investment in such funds by the Board of Governors 
of the Federal Reserve System or other competent Federal authority, whichever 
amount shall be less. In the event the foregoing sentence is held unconstitutional, 
then the amount of moneys of any one estate which shall be invested in any one or 
more such common trust funds as may be maintained by a trust institution shall 
not exceed one hundred thousand dollars. In applying this limitation, if two or more 
trusts are created by the same settlor or settlors, and as much as one-half of the 
income or principal, or both, of each trust is payable or applicable to the use of the 
same person or persons, such trusts shall be considered as one and the same limit 
shall apply. 
1955 (49) 538. 

§ 8-588.13. Fund investment of estate assets restricted to legal investments. 

If the instrument under which a trust institution acts as fiduciary, whether such 
fiduciary capacity arose before or is created after May 11 1955, shall either ex- 
pressly or by its silence limit or restrict the investment of moneys of the estate and 
securities to the class authorized by law as legal investments, the trust institution 
may, in its capacity as sole fiduciary or with the consent of any person acting with 
it in a fiduciary capacity, invest and reinvest moneys of the estate in any such com- 
mon trust fund maintained by the trust institution if the securities composing such 
fund consist solely of securities of the class authorized as legal investments for 
funds held by a fiduciary. 

1955 (49) 538. 

§ 8-588.14. Fund investment of estate assets authorized therefor or for non- 
legal investments. 

If the instrument under which the trust institution acts as fiduciary, whether such 
fiduciary capacity arose before or is created after May 11 1955, shall authorize in- 
vestments of moneys of the estate in a common trust fund or in investments other 
than those designated by law as legal investments, or shall authorize the trust in- 
stitution, either alone or in conjunction with any person acting with it in a fiduciary 
capacity, to exercise its or their discretion with respect to the investment of moneys 
of the estate, the trust institution may, in its capacity as sole fiduciary or with the 
consent of any person acting with it in a fiduciary capacity, invest and reinvest 
moneys, of the estate in any such common trust fund maintained by it. Any such 
common trust fund consisting solely of moneys of estates contributed thereto by 
the trust institution pursuant to authority contained in any such instruments cre- 
ating the fiduciary capacity to invest moneys of the estates in a common trust fund, 
or in investments other than such legal investments, or pursuant to such discre- 
tionary powers with respect to the investment of moneys creating the fiduciary 
capacity, may be composed of investments other than those of the class designated 
by law as legal investments for funds held by fiduciaries. 

1955 (49) 538. 

§ 8-588.15. Institutional records of investments in fund. 

The trust institution shall designate clearly upon its records the names of the 
fiduciary accounts on behalf of which the trust institution, as fiduciary or cofi- 
duciary, owns a participation in the common trust fund and the extent of the in- 
terest of such fiduciary accounts therein. 

1955 (49) 538. 

§ 8-588.16. Valuation of securities in fund. 

At least once every three months the trust institution administering a common 
trust fund shall determine the value of the securities in the common trust fund. 

137 



§ 8-S8S.17 Code of Laws of South Carolina § 8-588.21 

No participation shall be admitted to or withdrawn from the common trust fund, 
except on the basis of such valuation and on the date of the determination of such 
valuation or, if permitted by the plan, within five business days subsequent to 
the date of such determination. 
1955 (49) 538. 

§ 8-588.17. Institutional fees prohibited; expense reimbursement permitted. 

Trust institutions shall not charge a fee for the management of a common trust 
fund administered by it or receive, either from the common trust fund or from 
any fiduciary account the funds of which are invested in participations therein, 
any additional fees, commissions or compensation of any kind by reason of such 
participation, but a trust institution shall not be prohibited from reimbursing it- 
self out of a common trust fund for such reasonable expenses incurred by it in 
the administration thereof as would have been chargeable to the respective par- 
ticipating fiduciary accounts if incurred in the separate administration of such par- 
ticipating fiduciary accounts. 

1955 (49) 538. 

§ 8-588.18. Mistakes made in good faith and in exercise of due care. 

No mistake made in good fa:*h and in the exercise of due care in connection 
with the administration of a common trust fund shall be deemed to be a violation 
of this article or of any rules or regulations issued pursuant thereto if promptly 
after discovery of the mistake the trust institution takes whatever action may be 
practical in the circumstances to remedy the mistake. 

1955 (49) 538. 

§ 8-588.19. Annual audit of fund. 

At least once during each period of twelve months, the trust institution shall 
cause an audit to be made of the common trust fund by auditors responsible only 
to the board of directors of the trust institution. The report of such audit shall in- 
clude a list of the investments comprising the common trust fund at the time of 
the audit, which list shall show the valuation placed on each item as of the date 
of the audit, a statement of purchases, sales and other investment changes, and of 
all income and disbursements during the period to which the audit relates. The 
period of the first audit shall commence with the establishment of the common trust 
fund and the period of each succeeding audit shall commence at the end of the 
period covered by the preceding audit. The reasonable expenses of any such audit 
may be charged to the common trust fund and a copy thereof shall be available 
at the principal office of the trust institution for inspection during all regular busi- 
ness hours to any person having an interest in a participation in the common trust 
fund. The trust institution shall furnish a copy of such audit to any person having 
an interest in or participation in the common trust fund without expense to such 
person should he request a copy thereof. 

195S (49) 538. 

§ 8-588.20. Court accountings of fund. 

Unless ordered by a court of competent jurisdiction, a trust institution admin- 
istering a common trust fund shall not be required to render a court accounting 
with regard to such fund but it may file returns and make accounting in the 
same manner and for the same purposes as is provided by law for other fiduciaries. 

1955 (49) 538. 

§ 8-588.21. Exempt from income taxes. 

A common trust fund shall not be subject to taxation under any income tax law 
of this State. 

1955 (49) 538. 

138 



§ 8-588.22 1960 Cumulative Supplement § 8-594 

§ 8-588.22. Article no prohibition on other such funds. 

Nothing herein contained shall prohibit a trust institution from establishing, 
maintaining and administering one or more common trust funds differing from 
the requirements of this article, in which only investments or participations are 
made by such trust institution, in accordance with specific contract authority. 

1955 (49) 538. 

§ 8-588.23. Invalidity of article and §§ 65-257.11 and 65-299.1. 

This article and §§ 65-257.11 and 65-299.1 are declared to be severable, and 
should any word, phrase, sentence, provision or section thereof be declared un- 
constitutional or otherwise invalid, the remainder of said provisions shall not there- 
by be affected, but shall remain valid and in full force and effect for all intents 
and purposes. 

1955 (49) 538. 

CHAPTER 5.1. 

Safe Deposit Boxes. 

Sec. Sec. 

8-591. Definitions. 8-597. Opening box when rental one year 

8-592. Leasing of boxes and acceptance of in default. 

property for safekeeping author- 8-598. Notary's certificate. 

ized. 8-599. Disposition of contents. 

8-593. Leases to minors. 8-600. Sale of contents unclaimed for two 
8-594. Access to box of fiduciary. years. 

8-595. Refusal of access because of adverse 8-600.1. Disposition of proceeds of sale. 

claim. 8-600.2. Disposition of private documents 
8-596. Removal of property of a decedent of no apparent value. 

prior to qualification of personal 8-600.3. Illegal use of words "safe deposit" 

representative. or "safety deposit." 

§ 8-591. Definitions. 

As used in this chapter: 

(1) "Lessee" means a person contracting with a lessor for the use of a safe 
deposit box; 

(2) "Lessor" means a bank, cash depository or trust company renting safe de- 
posit facilities authorized by law to operate in this State ; 

(3) "Safe deposit box" means a safe deposit box, vault or other safe deposit 
receptacle maintained by a lessor and the rules relating thereto apply to property 
or documents kept in safekeeping in the bank's vault. 

1952 (47) 1932. 

§ 8-592. Leasing of boxes and acceptance of property for safekeeping au- 
thorized. 

Subject to the provisions of this chapter, any bank, cash depository or trust 
company may maintain and lease safe deposit boxes and may accept property oi 
documents for safekeeping. 

1952 (47) 1932. 

§ 8-593. Leases to minors. 

A bank may lease a safe deposit box to, and in connection therewith deal with 
a minor with the same effect as if leasing to and dealing with a person of full legal 
capacity. 

1952 (47) 1932. 

§ 8-594. Access to box of fiduciary. 

When a safe deposit box is made available by a lessor to one or more persons 
acting as fiduciaries, the lessor may, except as otherwise expressly provided in the 

139 Volume 1 



§ 8-595 Code of Laws of South Carolina § 8-597 

lease or the writings pursuant to which such fiduciaries are acting, allow access 
thereto as follows: 

(1) By any one or more of the persons acting as executors or administrators, 

(2) By any one or more of the persons otherwise acting as fiduciaries when au- 
thorized in writing signed by all other persons so acting ; and 

(3) By any agent authorized in writing signed by all of the persons acting as 
fiduciaries. 

1952 (47) 1932. 

§ 8-595. Refusal of access because of adverse claim. 

An adverse claim to the contents of a safe deposit box or to property held in 
safekeeping is not sufficient to require the lessor to deny access to its lessee unless : 

( 1 ) The lessor is directed to do so by a court order issued by a court of com- 
petent jurisdiction; or 

(2) The safe deposit box is leased or the property is held in the name of a 
lessee with the addition of words indicating that the contents or property are held 
in a fiduciary capacity and the adverse claim is supported by a written statement 
of facts disclosing that it is made by or on behalf of a beneficiary and that there is 
reason to know that the fiduciary will misappropriate the trust property. 

A claim is also an adverse claim when (a) one of several lessees claims, contrary 
to the terms of the lease, an exclusive right of access, (b) one or more persons 
claim a right of access as agents or officers of a lessee to the exclusion of others 
as agents or officers or (c) it is claimed that a lessee is the same person as one 
using another name. 

1952 (47) 1932. 

§ 8-598. Removal of property of a decedent prior to qualification of personal 
representative. 
A lessor shall permit a person named in a court order for the purpose or, if no 
order has been served upon the lessor, the spouse, a parent, an adult descendant 
or a person named as an executor in a copy of a purported will produced by him 
to open and examine the contents of a safe deposit box leased by a decedent or 
any documents delivered by a decedent for safekeeping in the presence of an of- 
ficer, manager or assistant manager of the lessor. And the lessor, if so requested by 
such person, must deliver: 

(1) Any writing purporting to be a will of the decedent to the executor if one 
be therein named and otherwise to the court having jurisdiction of the decedent's 
estate ; 

(2) Any writing purporting to be a deed to a burial plot or to give burial in- 
structions to the person making the request for a search ; and 

(3) Any document purporting to be an insurance policy on the life of the de- 
cedent to the beneficiary named therein. 

No other contents shall be removed pursuant to this section until an executor or 
administrator qualifies and makes claim to the contents. 

The removal of the contents of any safe deposit box or deposit for safekeeping 
other than such as hereinabove permitted shall remain subject to §§ 65-504 and 
65-505. 

1952 (47) 1932. 

§ 8-597. Opening box when rental one year in default. 

If the rental due on a safe deposit box has not been paid for one year, the lessor 
may send a notice by registered mail to the last known address of the lessee stat- 
ing that the safe deposit box will be opened and its contents stored at the expense 

140 



§ 8-598 1960 Cumulative Supplement § 8-600.3 

of the lessee unless payment of the rental is made within thirty days. If the rental 
is not paid within thirty days from the mailing of the notice, the box may be 
opened in the presence of an officer, manager or assistant manager of the lessor and 
of a notary public who is not a director, officer, employee or stockholder of the 
lessor. 

1952 (47) 1932. 

§ 8-598. Notary's certificate. 

The notary public present at such opening shall execute a certificate reciting 
the name of the lessee, the date of the opening of the box and a list of its con- 
tents. The certificate shall be included in the package mentioned in § 8-599 and 
a copy of the certificate shall be sent by registered mail to the last known address 
of the lessee. 

1952 (47) 1932. 

§ 8-599. Disposition of contents. 

The contents of any box so opened shall be sealed in a package by the notary 
public who shall write on the outside the name of the lessee and the date of the 
opening. The package shall then be placed in the general vaults of the lessor at 
a rental not exceeding the rental previously charged for the box. 

1952 (47) 1932. 

§ 8-600. Sale of contents unclaimed for two years. 

If the contents of the safe deposit box have not been claimed within two years 
of the mailing of the certificate, the lessor may send a further notice to the last 
known address of the lessee stating that, unless the accumulated charges are paid 
within thirty days, the contents of the box will be sold at public auction at a spe- 
cified time and place or, in the case of securities listed on a stock exchange, will 
be sold upon the exchange on or after a specified date and that unsalable items 
will be destroyed. The time, place and manner of sale shall also be posted con- 
spicuously on the premises of the lessor and advertised once seven days prior to 
the sale in a newspaper of general circulation in the community. If the articles 
are not claimed and the accrued rent and disbursements of lessor paid, they may 
then be sold in accordance with the notice. 

1952 (47) 1932. 

§ 8-600.1. Disposition of proceeds of sale. 

The balance of the proceeds, after deducting accumulated charges, including the 
expense of advertising and conducting the sale, shall be deposited to the credit of 
the lessee in any account maintained by him or, if none, shall be deemed a deposit 
account with the bank, cash depository or trust company operating the safe de- 
posit facility and shall be identified on the books of the bank as arising from the 
sale of contents of a safe deposit box. 

1952 (47) 1932. 

§ 8-600.2. Disposition of private documents of no apparent value. 

Any documents or writings of a private nature, having little or no apparent 
value, need not be offered for sale, but shall be retained, unless claimed by the 
owner, for a period of two years after which they may be destroyed. 

1952 (47) 1932. 

§ 8-600.3. Illegal use of words "safe deposit" or "safety deposit." 

It is a criminal offense against this chapter were any person to use the words 
"safe deposit," "safety deposit" or other words deceptively similar thereto in con- 
nection with the rental of storage space or in the title or name under which busi- 

141 



§ 8-600.100 Code of Laws of South Carolina § 8-603.2 

ness was done except (1) a person subject to the jurisdiction of the State Board 
of Bank Control, (2) a manufacturer or dealer in safe deposit facilities or equip- 
ment or (3) an association the membership of which is composed of officers or 
institutions subject to the jurisdiction of the State Board of Bank Control or a 
similar agency of another state or of the United States. 
1952 (47) 1932. 

CHAPTER 6. 
Building and Loan Associations, etc. 

Sec. Sec. 

8-60O.10O. Use of "building and loan" and 8-603.1. Loans to banks on real estate and 

"savings and loan" by other than other security; no discount. 

certain institutions. 8-603.2. Home or other property improve- 
8-600.101. Acceptance and payment of de- ment loans. 

posits by minors. 8-606. Powers with respect to Federal 

Home Loan Bank Act. 

§ 8-600.100. Use of "building and loan" and "savings and loan" by other 
than certain institutions. 

No person in this State shall use the words "building and loan" or "savings and 
loan" in connection with any business other than an incorporated institution regu- 
lated by the State Board of Bank Control or the Federal Home Loan Bank Board. 
Any person violating the provisions of this section shall, upon conviction, be fined 
not less than one thousand dollars nor more than ten thousand dollars and be im- 
prisoned for not less than one year nor more than ten years in the discretion of 
the court. 

1960 (51) 1778. 

Editor's note. — Any person using the 
words above described shall have one year 
from May 16, 1960 to comply with above. 

§ 8-600.101. Acceptance and payment of deposits by minors. 

Any building and loan association or savings and loan association may accept 
or disburse deposits of a minor with the same effect as if dealing with a person 
of full legal capacity. 

1960 (51) 1907. 

§ 8-602. Shares issued to two persons. 

Joint deposit owned by survivor. — In of the statute, although the latter is not 

action for judgment that niece was owner conclusive of the rights existing between 

of a joint deposit, where uncle made deposit the depositors or their representatives. Of 

in federal savings and loan association, and course, as recognized by the trial judge, 

passbook was in name of uncle or niece, another case of joint deposit might disclose 

after which uncle died, it was clear under facts which would negative the intent of 

the evidence that it was the contractual survivorship which has been found here, 

intent of all concerned in the transaction Hawkins v. Thackston, 224 S. C. 445, 79 

that the survivor of the joint depositors S. E. 2d 714 (1954). 

should take the balance of the deposit re- Cited in Davis v. Davis, 223 S. C. 182, 

maining at the time of the death of the 75 S. E. 2d 46 (1953). 
other, and the agreement had the sanction 

§ 8-603.1. Loans to banks on real estate and other security; no discount. 

Editor's note. — Catchline reduced to 
banks, enlarged to include other security 
and prohibition on discounts. 

§ 8-603.2. Home or other property improvement loans. 

Regardless of the provisions of § 8-603.1 any building and loan association may 
make home improvement loans under the Title I FHA or other loans for property 
alteration, repair or improvement in an amount which in any case shall not exceed 

142 



§ 8-606 1960 Cumulative Supplement § 8-702 

twenty-five hundred dollars for each loan; but the total amount of the loans so 
made shall not at any time exceed fifteen per cent of the association's assets. 
1956 (49) 2074. 

§ 8-606. Powers with respect to Federal Home Loan Bank Act. 

* * * 

(4) Invest in the bonds of any Federal home loan bank; 

* * * 

1942 Code § 7876-14; 1934 (38) 1557; 1953 (48) 357. 

Effect of amendment. — The amendment the section was affected by the amend- 
substituted t he word "bonds" for the ment, only that subdivision 19 set forth 
word "banks." As only subdivision (4) of above. 

§ 8-610. Taxation of building and loan associations. 

Federal savings and loan associations Laurens Fed. S. & L. Ass'n v. South Caro- 
can be taxed only to same extent that local Una Tax Com'n, 236 S. C. 2, 112 S. E. 
building and loan associations are taxed. 2d 716 (1960). 

CHAPTER 7. 

Cooperative Credit Unions. 

Sec. Sec. 

8-701. "Cooperative credit union" denned. 8-716. Expulsion of members. 

8-702. Certificate of incorporation. 8-717. Settlement with member withdraw- 

8-703. Bylaws. ing or expelled. 

8-704. Powers. 8-718. Fiscal year. 

8-705. Meetings of members. 8-719. Investments. 

8-706. Directors, credit committee and su- 8-720. Payment of loans. 

pervision committee. 8-721. Guaranty fund. 

8-707. Oath and terms of office of direc- 8-722. Supervision committee report prior 

tors and committeemen. to considering dividend payment. 

8-708. Executive officers. 8-723. Declaration and payment of divi- 
8-709. Pay of officers and committeemen. dends. 

8-710. Powers of board. 8-724. Dissolution. 

8-711. Approval of loans. 8-725. State Board of Bank Control to 
8-712. Powers of supervision committee. supervise credit unions. 

8-713. Capital stock. 8-726. Reports. 

8-714. Entrance fee. 8-727. Use of words "cooperative credit 
8-715. Shares and deposits of minors and union" restricted. 

trustees. 

§ 8-701. "Cooperative credit union" defined. 

In this chapter the words "cooperative credit union" shall mean a cooperative 
association formed for the purpose of promoting thrift among its members and 
to enable them, when in need, to obtain for productive and provident purposes 
moderate loans of money for short periods and at reasonable rates of interest. 

1952 (47) 1950. 

§ 8-702. Certificate of incorporation. 

Ten or more citizens of this State, all employees of the same employer, who 
have associated themselves by an agreement in writing for the purpose of forming 
a cooperative credit union under the provisions of this chapter may apply to the 
State Board of Bank Control for a certificate certifying that it is satisfied that the 
proposed field of operation is favorable to the success of such cooperative credit 
union and that the standing of the proposed members is such as to give reasonable 
assurance that its affairs will be administered in accordance with the spirit of this 
chapter. When the Board is so satisfied it shall issue such a certificate. Upon the 
filing of such certificate in the office of the Secretary of State and the payment 

143 



§ 8-703 Code of Laws of South Carolina § 8-705 

to him of a charter fee of three dollars, the Secretary of State shall thereupon 
issue to such cooperative credit union a certificate of incorporation. 

1952 (47) 1950; 1960 (51) 1779 [1901]. 

Effect of amendment. — The 1960 amend- 
ment changed Commissioner of Labor to 
State Board of Bank Control. 

§ 8-703. Bylaws. 

The bylaws of each cooperative credit union shall prescribe : 

(1) The name of the credit union; 

(2) The purposes for which it is formed; 

(3) The conditions of residence or occupation which qualify persons for mem- 

bership ; 

(4) The par value of shares of capital stock; 

(5) The conditions on which shares may be paid in, transferred and with- 

drawn ; 

(6) The system for encouraging members to increase their holdings of shares; 

(7) The conditions on which deposits may be received and withdrawn; 

(8) The method of receipting for money paid on account of shares or deposits ; 

(9) The number of directors and their term of office and the number of mem- 

bers of the credit committee and their term of office; 

(10) The duties of the several officers; 

(11) The fines, if any, which shall be charged for failure to meet obligations 

to the corporation punctually ; 

(12) The date of the annual meeting of members; 

(13) The manner in which the members shall be notified of the meetings; 

(14) The number of members which shall constitute a quorum at meetings; and 

(15) Such other regulations as may seem necessary. 
1952 (47) 1950. 

§ 8-704. Powers. 

A cooperative credit union may receive the savings of its members in payment 
for shares or on deposit, may lend to its members at reasonable rates of interest, 
not to exceed one per cent per month on unpaid loan balances, may invest, as 
hereinafter provided the funds so accumulated and make loans of them to its mem- 
bers, may borrow from banks, savings banks, trust companies or other credit unions 
or persons and loan such money to its members and may undertake such other 
activities relating to the purposes of the association as its bylaws may authorize. 

1952 (47) 1950. 

§ 8-705. Meetings of members. 

The annual meeting of the credit union shall be held at such time and place as 
the bylaws prescribe. Special meetings may be held by order of the directors or the 
supervision committee and the clerk shall give notice of special meetings upon re- 
quest, in writing, of ten members. Notice of all meetings of the credit union shall 
be given in the manner prescribed by the bylaws. No person shall be entitled to 
vote who has not been a member for more than three months, but this restriction 
shall not apply during the first twelve months of existence of the credit union. No 
member shall vote by proxy or have more than one vote. At the annual meeting 
the members shall, upon recommendation of the board of directors, declare divi- 
dends and fix the amount of the entrance fee. At any meeting the members may 
decide upon any question of interest to the credit union and upon the appeal of two 
members may reverse decisions of the credit committee or board of directors and, 

144 



§ 8-706 1960 Cumulative Supplement § S-710 

by a three-fourths vote of those present, provided the notice of the meeting shall 
have specified the question to be considered, ma} - amend the bylaws. 
1952 (47) 1950. 

§ 8-706. Directors, credit committee and supervision committee. 

At the annual meeting the members shall elect from their members a board of 
directors of not less than five members, a credit committee of not less than three 
members and a supervision committee of three members. The method of election 
and length of term of the members of the board of directors, credit committee and 
supervision committee shall be as specified in the by-laws. Xo member of the 
board of directors shall be a member of the credit committee or of the supervision 
committee, nor shall one person be a member of more than one of the committees. 

1952 (47) 1950. 

§ 8-707. Oath and terms of office of directors and com m itteemen. 

All directors and all members of the committees, as well as all officers whom 
they may elect, shall be sworn and shall hold their several offices until others are 
elected and qualified in their stead. A record of every such qualification shall be 
filed and preserved with the records of the credit union. 

1952 (47) 1950. 

§ 8-708. Executive officers. 

At its first meeting the board of directors shall elect from its number a pres- 
ident, a vice-president, a clerk and a treasurer, who shall be the executive officers 
of the corporation. 

1952 (47) 1950. 

§ 8-709. Pay of officers and committeemen. 

No officer, director or credit committee member shall receive any compensation, 
directly or indirectly, for the services he performs for the credit union as such 
officer, director or credit committee member, except the treasurer, who may be 
compensated for his services in the amount and in the way and manner provided 
for by the board of directors. 

1952 (47) 1950. 

§ 8-710. Powers of board. 

The board of directors shall have the general management of the affairs, the 
funds and the records of the credit union and shall meet as often as may be neces- 
sary. It shall be the special duty of the board of directors : 

(1) To act upon all applications for membership; 

(2) To act upon the expulsion of members : 

(3) To fix the amount of the surety bond which shall be required of each officer 

:ng custody of funds : 

(4) To determine the rate of interest which shall be allowed on deposits; 

(5) To determine the rate of interest which shall be charged on loans; 

(6) To fill vacancies on the board of directors or on the credit committee of 

the credit union, until the election and the qualification of members to 
fill the vacancies ; 

(7) To make recommendations to meetings of the members relative to the 

amount of the entrance fee; the maximum number of shares which may 
be held by. and the maximum amount which may be lent to, any one 
member : the dividend to be declared ; amendments to the bylaws ; and 
any other matters which, in their opinion, the members should decide ; 
and 

(8) To approve applications for loans to members of the credit committee. 
1952 (AT) 1950. 

145 



§ 8-711 Code of Laws ok South Carolina § 8-716 

§ 8-711. Approval of loans. 

The credit committee shall approve every loan or advance made by the credit 
union. Every application for a loan shall be made in writing and shall state the 
purpose for which the loan is desired and the security offered. No loan shall be 
made unless (a) the credit committee is satisfied that it promises to benefit the 
borrower and (b) it has the unanimous approval of those members of the com- 
mittee who were present when it was considered or (c) if any member of the 
committee shall disapprove thereof. But the applicant for a loan may appeal from 
the decision of the credit committee to the board of directors. Loans to members 
of the credit committee shall be approved by the board of directors. 

1952 (47) 1950. 

§ 8-712. Powers of supervision committee. 

The supervision committee shall inspect the securities, the cash and the accounts 
of the credit union and supervise the acts of its board of directors, credit com- 
mittee and officers. At any time the supervision committee by unanimous vote may 
suspend the credit committee or any officer elected by the board of directors and 
by a majority vote may call a meeting of the shareholders to consider any viola- 
tion of this chapter or of the bylaws or any practice of the credit union which, in the 
opinion of the supervision committee, is unsafe and unauthorized. Within seven 
days after suspension of the credit committee the supervision committee shall cause 
notice to be given of a special meeting to take such action relative to such suspen- 
sion as may seem necessary. The supervision committee shall fill vacancies in 
their own number until the next annual meeting. 

1952 (47) 1950. 

§ 8-713. Capital stock. 

The capital stock of the credit union shall be unlimited in amount. Shares of 
capital stock may be subscribed and paid for in such manner as the bylaws shall 
prescribe, but no certificate of shares shall be issued until the shares have been 
fully paid up. The par value of each share of the capital stock shall be five dollars. 

1952 (47) 1950. 

§ 8-714. Entrance fee. 

As an initial payment for the privilege of membership, each member shall pay 
an entrance fee of at least one dollar, besides subscribing for not less than one share 
of capital stock. 

1952 (47) 1950. 

§ £715. Shares and deposits of minors and trustees. 

Shares may be issued and deposits received in the name of a minor and such 
shares and deposits may, in the discretion of the board of directors, be withdrawn 
by such minor or by his parent or guardian and in either case payments made 
on such withdrawals shall be valid. If shares are held or deposits made in trust, 
the name and residence of the beneficiary shall be disclosed and the account shall 
be kept in the name of such holder as trustee for such minor. If no other notice 
of the existence and the terms of such trust has been given in writing to the credit 
union, such shares or deposits may, upon the death of the trustee, be withdrawn 
by the person for whom the amount of such shares was paid in or for whom such 
deposit was made or by his legal representative. 

1952 (47) 1950. 

§ 8-716. Expulsion of members. 

The board of directors may expel from the credit union any member (a) who 
has not carried out his engagements with the credit union, (b) who has been 

146 



§ 8-717 1960 Cumulative Supplement § 8-721 

convicted of a criminal offense, (c) who neglects or refuses to comply with the 
provisions of this chapter or the bylaws of the credit union, (d) whose private 
life is a source of scandal, (e) who habitually neglects to pay his debts, (f) 
who shall become insolvent or bankrupt or (g) who shall have deceived the 
credit union with regard to his property, resources, credit or use of borrowed 
money. But no member shall be so expelled until he has been informed in writ- 
ing of the charges against him and until an opportunity has been given him, after 
reasonable notice, to be heard thereon. 
1952 (47) 1950. 

§ 8-717. Settlement with member withdrawing or expelled. 

The amounts paid in on shares or deposited by members who have withdrawn 
or who have been expelled shall be paid to them, less all accrued interest and 
other gains or profits, but in order of withdrawal or expulsion and only as funds 
therefor become available and after deducting any amounts due by the members 
to the credit union. But such expulsion shall not operate to relieve a member 
from any remaining liability to the credit union. 

1952 (47) 1950. 

§ 8-718. Fiscal year. 

The fiscal yar of every such cooperative credit union shall end at the close 
of business on December thirty-first. 

195? (47) 1950. 

§ 8-719. Investments. 

The capital, the deposits and the surplus funds of the credit union shall be 
either lent to the members for such purposes and upon such security and terms 
as the credit committee shall approve or be deposited to the credit of the credit 
union in savings banks, trust companies, State banks incorporated under the 
laws of this State, national banks or other credit unions or invested in any in 
vestment which is legal for savings banks in this State. 

1952 (47) 1950. 

Cooperative credit unions may make in moderate amounts and for short periods 
loans upon real estate secured by real of time. Atty. Gen. Op. Aug. 10, 1955. 
estate mortgages, but such loans must be 

§ 8-720. Payment of loans. 

A borrower may repay the whole or any part of his loan on any day on which 
the office of the credit union is open for the transaction of business. For the 
failure to pay the interest or any installment required by the terms of the loan, 
the borrower may be fined if the bylaws so prescribe. 

1952 (47) 1950. 

§ 8-721. Guaranty fund. 

Immediately before the payment of each dividend there shall be set apart as a 
guaranty fund twenty per cent of the net income which has accumulated during 
the fiscal year. Such fund and the investments shall belong to the credit union 
and shall be held to meet contingencies or losses in its business. All entrance 
fees shall be added at once to the guaranty fund. Upon recommendation of the 
board of directors the members at an annual meeting may increase and, when- 
ever the fund equals ten per cent of the amount of capital stock actually paid 
in, may decrease the proportion of profits which is required by this section to 
be set apart as a guaranty fund. 

1952 (47) 1950. 

147 



§ 8-722 Code of Laws of South Carolina § 8-726 

§ 8-722. Supervision committee report prior to considering dividend payment. 

Immediately before a meeting of the board of directors called to recommend 
the declaration of a dividend, the supervision committee shall make a thorough 
audit of the repairs, the disbursements, the income, the assets and the liabilities 
of the credit union for the fiscal year and shall make a full report thereon to 
the directors. The report shall be read at the annual meeting and shall be filed 
and preserved with the records of the credit union. 

1952 (47) 1950. 

Editor's note. — "Repairs" on line 3 ap- 
parently should be "affairs." 

§ 8-723. Declaration and payment of dividends. 

At the annual meeting upon recommendation of the board of directors a divi- 
dend may be declared from undivided surplus remaining after the deduction of 
all expenses, losses, interest on deposits and the amount required to be set apart 
as a guaranty fund. Such dividend shall be paid on all fully-paid shares outstand- 
ing at the close of the fiscal year, but shares which become fully paid during the 
year shall be entitled only to a proportional part of the dividend, calculated from 
the first day of the month following such payment in full. Dividends due to a 
member shall be paid to him in cash or credited to the account of partly-paid 
shares for which he has subscribed. 

1952 (47) 1950. 

§ 8-724. Dissolution. 

At any meeting specially called to consider the subject, the members, upon the 
unanimous recommendation of the board of directors, may vote to dissolve the 
credit union, provided at least two-thirds of the members are present at such 
meeting and provided not more than ten members, either in person or by writ- 
ten notice, object thereto. A committee of three members shall thereupon be 
elected to liquidate the assets of the credit union and each share of the capital 
stock, according to the amount paid in thereon, shall be entitled to its propor- 
tion of the proceeds after all deposits and debts of the credit union have been 
paid. 

1952 (47) 1950. 

§ 8-725. State Board of Bank Control to supervise credit unions. 

Every cooperative credit union organized under the provisions of this chapter 
shall be subject to the supervision of the State Board of Bank Control. The Board 
shall require such cooperative credit unions to keep such books as it may deem 
necessary for the proper conduct of their business. The Board shall make an ex- 
amination and demand a sworn report by the officers of the transactions of such 
cooperative credit union's business and may institute necessary proceedings for the 
prosecution of any officer or director misapplying the cooperative credit union's 
funds. The Board may make reasonable rules and regulations for cooperative credit 
unions chartered by this State including the establishment of reasonable exami- 
nation fees. The Board may accept a report from a certified public accountant 
as to the financial affairs of a cooperative credit union in lieu of an examination 
by its representative or representatives. 

1952 (47) 1950; 1960 (51) 1779 [1901]. 

Effect of amendment. — The 1960 amend- 
ment substituted State Board of Bank Con- 
trol for Commissioner of Labor. 

§ 8-726. Reports. 

Within thirty-one days after the last business day of December in each year 
every cooperative credit union shall make a report to the Board, in such form 

148 



§ 8-727 1960 Cumulative Supplement § 8-727 

as the Board may prescribe, signed by its president and its treasurer and by a 
majority of its supervision committee. Such report shall certify and make oath, 
that it is correct according to the best knowledge and belief of the president, the 
treasurer and the supervision committee of the cooperative credit union. Every 
cooperative credit union shall pay a filing fee of ten dollars at the time of filing 
the annual report provided by this section. Any cooperative credit union which 
neglects to make the annual report within the time prescribed shall forfeit to 
the State five dollars for each day during which such neglect continues unless the 
Board for good and valid reasons has granted the cooperative credit union a rea- 
sonable extension of time. 

1952 (47) 1950; 1960 (51) 1779 [1901]. 

Effect of amendment — The 1960 amend- 
ment substituted Board for Commissioner 
of Labor. 

§ 8-727. Use of words "cooperative credit union" restricted. 

No person, partnership, association or corporation, except corporations formed 
under the provisions of this chapter, shall hereafter transact business under any 
name or title which contains the three words "cooperative credit union", or any 
combination of two or more of those words, except those expressly authorized 
herein to be formed or any association or corporation composed of cooperative 
credit unions formed under the provisions of this chapter or under the Federal 
Credit Union Act. Any person, partnership, association or corporation which 
violates the provisions of this section may be enjoined from doing business under 
such name or title at the instance of any stockholder of any cooperative credit 
union legally organized under this chapter. 

1952 (47) 1950. 

CHAPTER 7.1. 
Small Loan Companies. 

Sec. Sec. 

8-731 to 8-793.5. [Repealed.] 8-794.33. License required for each place of 

_ ^F^i; e h. business; one licensee may have 

General Provisions. several licenses. 

8-794. Definitions. 8-794.34. Application for license; fees 

8-794.1. Provisions not applicable to banks, 8-794.35. Bond. 

trust companies, credit unions, 8-794.36! Same'; additional bond 

licensed pawnbrokers and Mor- 8-794.37. Investigation of application; no- 

ris Plan companies. tice to licensees 

8-794.2. Chief administrative officer and 8-794.38. Time to act on application 

o vn, , v, °, theT P ersonn , e1 -. 8-794.39. Denial of application. 

liali r A a A r ?* ul % t, ° ns - i 8-794.40. Issuance of license; licenses per 

8-794.4. Certified copies of licenses, regula- ^mmi,™^ 

,. _i j e • m cumin unity. 

tions and orders fees; evidence 0701,11 n »„„. ~c r 

of issuance. 8-794.41. Contents of hcense; post.ng; non- 
8-794.5. Disposition and use of fees and ■ 7r .. ,-_,*> ", , , 

{^ n( j s 8-794.42. Term; annual renewal fee. 

8-794.6. Advertising. o~™Mf Surrender of license. 

8-794.7. Confession of judgment or power of °V7 r Sus P ensl0n of license. 

attorney to appear for borrower 8-794.45. Revocation of license; notice; 

in judicial proceeding void. hearing; grounds. 

8-794.8. Invalidity. 8-794.46. Order of revocation or suspen- 

8-794.9. Penalties to violate § 8-794.31. sion; service. 

8-794.10. General penalties. 8-794.47. Reinstatement of suspended li- 

Article 2. cense; issuance of new license to 

Licenses. former licensee whose license 

8-794.31. License required to make loans of revoked. 

two hundred dollars or less when 8-794.48. Amendments to chapter may ef- 

charges exceed legal interest. feet certain license cancellations. 

8-794.32. Section 8-794.31 applicable if sub- 8-794.49. Contracts between licensee and 

terfuge used for avoidance. obligors not impaired by suspen- 

149 






§ 8-731 



Code of Laws of South Carolina 



§ 8-794 



Sec. 

sion, revocation or surrender of 
license. 

Article 3. 

Places of Business; Records and Reports. 

8-79471. Conduct business separately from 
other businesses; illegal conduct 

8-794.72. Change of place of business. 

8-794.73. Books and records; time preserve. 

8-794.74. Annual reports; Board publish 
analysis. 

8-794.75. Other reports. 

Article 4. 
Loans. 

8-794.91. Loans with cash advance of two 
hundred dollars or less payable 
in monthly instalments; compu- 
tation of instalments; minimum 
instalment. 

8-794.92. Interest on such loans. 

8-794.93. Initial charge on such loans. 

8-794.94. Monthly default charge on such 
loans. 

8-794.95. Additional charges prohibited; de- 
linquent charge and certain ex- 
penses permitted. 

8-794.96. Interest and charges when cash 
advance in excess of two hun- 
dred dollars; computation of 
monthly instalments. 

8-794.97. Weekly instalments permitted on 
loans with cash advances of one 
hundred dollars or less; compu- 
tation; minimum instalment. 

8-794.98. Loans to be in name of licensee. 

8-794.99. Maturity of loans. 

8-794.100. Chattel mortgage on household 
furniture. 

8-794.101. Information loan obligation to 
disclose; complete papers before 
execution. 

8-794.102. Licensee give borrower copy of 
obligation. 

8-794.103. Payment of loan prior to ma- 
turity. 

8-794.104. Cash payment receipts. 

8-794.105. Satisfaction of debt and return of 
security when loan paid. 

8-794.106. Loan contracts violating § 8- 
794.31 void. 



Sec. 

8-794.107. Intentional excess charges to void 
loan contract; penalties. 

8-794.108. Additional contracts for purpose 
of increasing cost to borrowers 
prohibited. 

Article 5. 

Insurance on Property Securing Loan and 
on Borrower. 

8-794.121. May require and sell personal 
property, life and earning capa- 
city insurance. 

8-794.122. Property insurance. 

8-794.123. Life, accident and health insur- 
ance. 

8-794.124. Insurance bear reasonable rela- 
tion to existing hazard or risk of 
loss; agencies and companies 
write. 

8-794.125. Purchase of insurance from li- 
censee not to be condition pre- 
cedent to making of loan; exist- 
ing insurance. 

8-794.126. Licensee furnish borrower copy 
of policy procured through him. 

8-794.127. Insurance on loans in excess of 
two hundred dollars. 

8-794.128. Commissions and dividends of li- 
censee not considered as addi- 
tional interest or charges. 
Article 6. 
Examinations; Investigations; Orders to 
Desist. 

8-794.141. Examinations; payment of cost. 

8-794.142. Investigations. 

8-794.143. Inspection of records and prem- 
ises; attendance of witnesses. 

8-794.144. Order to desist from violating 
chapter; injunctions; receivers. 
Article 7. 
Judicial Review of Orders of Board. 

8-794.161. Circuit court may review on 
petition. 

8-794.162. Failure file petition waiver of 
right of review. 

8-794.163. Jurisdiction of the court. 

8-794.164. Board furnish transcript of rec- 
ord and order; hearing. 

8-794.165. Appeals. 

8-794.166. Supersedeas. 



§§ 8-731 to 8-793.5. Definitions ; supersedeas. 

Repealed by A. & J. R. 1957 (50) 339. 

Cross reference. — See now §§ 8-794 et 
»eq. 

Article 1. 

General Provisions. 
§ 8-794. Definitions. 

When used in this chapter the terms listed below shall have the following 
meanings: 

(1) "Small loan company" shall include all persons conducting the business of 
making advances of small sums of cash in amounts of two hundred dollars or less. 

(2) "Board" shall mean the State Board of Bank Control and its duly authorized 
deputies. 

150 



§ 8-794.1 1960 Cumulative Supplement § 8-794.6 

(3) "License" shall mean the privilege certificate issued by the Board under the 
authority of this chapter to conduct a small loan business. 

(4) "Licensee" shall mean a person to whom one or more licenses have been 
issued. 

(5) "Cash advance" shall mean the amount of cash or its equivalent that the 
borrower actually receives or is paid out at his direction or on his behalf. 

(6) "Amount of the loan" shall mean the cash advance plus the initial charge. 

1957 (SO) 339. 

Supervision vested in Board. — Super- Bank Control v. Thomason, 236 S. C. 158, 
vision of small loan business vested in 113 S. E. 2d 544 (1960). 
State Board of Bank Control. Board of 

§ 8-794.1. Provisions not applicable to banks, trust companies, credit unions, 
licensed pawnbrokers and Morris Plan companies. 

This chapter does not apply to any person doing business under authority of and 
as permitted by any law of this State or of the United States relating to banks, 
savings banks, industrial banks, trust companies, credit unions, licensed pawn- 
brokers or Morris Plan companies. 

1957 (50) 339. 

§ 8-794.2. Chief administrative officer and other personnel. 

The Board may designate or appoint a chief administrative officer and such other 
personnel as it deems necessary to perform the duties and exercise the powers 
herein conferred. The chief administrative officer and all other personnel shall serve 
at the pleasure of the Board. 

1957 (50) 339. 

§ 8-794.3. Rules and regulations. 

The Board may make rules and regulations which interpret or explain another 
section or sections of this chapter, as it may deem necessary. Such regulations shall 
be referenced to the section or sections of this chapter which set forth the legisla- 
tive standards which they interpret or explain. 

1957 (50) 339. 

Rules and Regulations promulgated un- Regulations, Bank Control, State Board of, 
der authority of this section, see Rules and in Volume 7. 

§ 8-794.4. Certified copies of licenses, regulations and orders ; fees ; evidence 
of issuance. 

On application of any person and payment of the cost thereof, the Board shall 
furnish under its seal and duly signed a certified copy of any license, regulation or 
order. Such copy shall be prima facie evidence of the fact of the issuance of such 
license, regulation or order in any court or proceeding. 

1957 (50) 339. 

§ 8-794.5. Disposition and use of fees and funds. 

All license fees, investigation fees and other funds collected by the Board under 
the terms of this chapter, shall be paid over to the State Treasurer and shall be 
used to defray costs of administering this chapter, including salaries of assistant 
examiners, other necessary clerical help and necessary travel expense and sub- 
sistence. 

1957 (50) 339. 

§ 8-794.6. Advertising. 

No licensee or other person subject to this chapter shall advertise, display, dis- 
tribute, broadcast or televise or cause or permit to be advertised, displayed, dis- 

151 



§ 8-794.7 Code of Laws of South Carolina § 8-794.31 

tributed, broadcast or televised in any manner whatsoever any false, misleading or 
deceptive statement or representation with regard to the rates, terms or conditions 
for loans. The Board may require that charges or rates, if stated by a licensee, be 
stated fully and clearly in such manner as it may deem necessary to prevent mis- 
understanding thereof by prospective borrowers. The Board may permit licensees 
to refer in their advertising to the fact that their business is under State supervision, 
subject to conditions imposed by it to prevent an erroneous impression as to the 
scope or degree of protection provided by this chapter. 
1957 (50) 339. 

§ 8-794.7. Confession of judgment or power of attorney to appear for bor- 
rower in judicial proceeding void. 

No licensee shall take any confession of judgment or permit any borrower to 
execute a power of attorney in favor of any licensee or in favor of any third person 
to confess judgment or to appear for the borrower in any judicial proceeding and 
any such confession of judgment or power of attorney to confess judgment shall be 
absolutely void. 

1957 (50) 339. 

§ 8-794.8. Invalidity. 

If any provision of this chapter, or the application of such provision to any per- 
son or circumstances, shall be held invalid, the remainder of the chapter, and the 
application of such provision to any person or circumstances other than those to 
which it is held invalid, shall not be affected thereby. 

1957 (50) 339. 

§ 8-794.9. Penalties to violate § 8-794.31. 

Any person and the several members, officers, directors, agents and employees 
thereof, who shall violate or participate in the violation of any of the provisions of 
§ 8-794.31 shall be guilty of a misdemeanor and upon conviction thereof shall be 
punishable by a fine of not more than one thousand dollars and not less than one 
hundred dollars or by imprisonment for not more than six months or by both such 
fine and imprisonment in the discretion of the court. 

1957 (50) 339. 

§ 8-794.10. General penalties. 

Any person who willfully violates any provision of this chapter for which a 
penalty has not been provided shall be guilty of a misdemeanor and shall be fined 
not more than one thousand dollars nor less than one hundred dollars in the discre- 
tion of the court. 

1957 (50) 339. 

Article 2. 

Licenses. 

§ 8-794.31. License required to make loans of two hundred dollars or less 
when charges exceed legal interest. 

No person shall engage in the business of lending in amounts of two hundred 
dollars or less and contract for, exact or receive directly or indirectly, or in con- 
nection with any such loan, any charges, whether for interest, compensation, con- 
sideration or expense, which in the aggregate are greater than the interest rate per- 
mitted by the general usury statute, except as provided in and authorized by this 
chapter without first having obtained a license from the Board. 

1957 (50) 339. 

152 



§ 8-794.32 1960 Cumulative Supplement § 8-794.37 

§ 8-794.32. Section 8-794.31 applicable if subterfuge used for avoidance. 

The provisions of § 8-794.31 shall apply to any person who seeks to avoid its 
application by any device, subterfuge or pretense whatsoever. 
1957 (SO) 339. 

§ 8-794.33. License required for each place of business ; one licensee may have 
several licenses. 

Not more than one place of business shall be maintained under the same license, 
but the Board may issue more than one license to the same licensee upon compliance 
with all the provisions of this chapter governing issuance of a single license ; but no 
license need be obtained for an accounting record-keeping place of business or other 
internal place of business control. 

1957 (SO) 339. 

§ 8-794.34. Application for license; fees. 

Application for a license shall be in writing under oath and in the form prescribed 
by the Board. The application shall contain such information as the Board may re- 
quire, including the names and addresses of the partners, officers, directors or 
trustees, and such of the principal owners or members as will provide the basis for 
the investigations and findings contemplated by §§ 8-794.37 and 8-794.39. At the 
time of making such application, the applicant shall pay to the Board fifty dollars as 
a fee for investigating the application and two hundred dollars as a license fee for 
the period ending on the last day of the current calendar year; but if the license 
is granted after June thirtieth in any year, the license fee shall be one hundred 
dollars. 

1957 (50) 339. 

§ 8-794.35. Bond. 

The applicant shall also, at the same time, file with the Board a bond in which 
the applicant shall be the obligor, in the sum of one thousand dollars, with one or 
more sureties, whose liabilities as such sureties shall not exceed the sum of one 
thousand dollars to be approved by the Board. The bond shall run to the State for 
the use of the State and of any person who may have a cause of action against the 
obligor of such bond under the provisions of this chapter. Such bond shall be con- 
ditioned that said obligor will conform to and abide by each provision of this chap- 
ter and will pay to the State and to any such person all moneys that may become 
due or owing to the State and to such person from said obligor under and by virtue 
of the provision of this chapter. 

1957 (50) 339. 

§ 8-794.36. Same; additional bond. 

If in the opinion of the Board the bond shall at any time appear to be insecure or 
exhausted or otherwise doubtful, an additional bond in the sum of not more than 
one thousand dollars satisfactory to the Board shall be filed within ten days after 
notice to the licensee. 

1957 (50) 339. 

§ 8-794.37. Investigation of application; notice to licensees. 

Upon the filing of the application and payment of the fees, the Board shall in- 
vestigate the facts concerning the application and the requirements provided for in 
§ 8-794.40. The Board shall notify the applicant and each licensee having a place of 
business in the community where the applicant proposes to do business of such 
application and of a day it proposes to consider the application, which shall be not 
less than fifteen days nor more than thirty days after the date of filing. If any 

153 



§ 8-794.38 Code ok Laws ok South Carolina § 8-794.42 

licensee having a place of business in the community or other person files an objec- 
tion within thirty days after the date of mailing such notice or if as a result of a 
preliminary investigation the Board has any doubt of the applicant meeting the 
standards of § S-794.40, the Board shall set a date and a time for a hearing of such 
application not less than forty days nor more than sixty days from the date of such 
mailing. 

1957 (SO) 339. 

§ 8-794.38. Time to act on application. 

The Board shall grant or deny each application for a license which is accompanied 
by the required fees within sixty days from the date of mailing such notice unless 
extended by written agreement of the applicant. 

1957 (50) 339. 

§ 8-794.39. Denial of application. 

If the findings of the Board are not favorable, it shall place on file its findings 
of fact and enter an order denying the application and notifying the applicant of the 
denial, returning the license fee but retaining the investigation fee. 

1957 (50) 339. 

§ 8-794.40. Issuance of license; licenses per community. 

The Board, if it shall find (a) that the financial responsibility, character, ex- 
perience and general fitness of the applicant are such as to command the confidence 
of the public and to warrant belief that the business will be operated lawfully, 
honestly, fairly and efficiently within the purposes of this chapter, which require- 
ments shall be maintained during the period of the license, (b) that the appli- 
cant has available adequate funds in the discretion of the Board for the operation 
of such business at the specified location and (c) allowing such applicant to 
engage in business will promote the convenience and advantage of the community 
in which the licensed office is to be located ; thereupon it shall enter an order 
granting the application, place on file its findings of fact and forthwith issue a license 
to the applicant. However, when the number of licensees in a community is less than 
four, upon properly qualified applications under clauses (a) and (b) hereof, it shall 
issue additional licenses so as to bring the number of licenses to four in such com- 
munity. 

1957 (50) 339. 

Convenience and advantage clause re- licensed, but the standard prescribed is 
quires limitation on number of licenses. — necessarily elastic, and the numerous cir- 
By incorporating convenience and ad- cumstances to be considered arc considera- 
vantage clause in this section, legislature tions for the Board. Board of Bank Control 
determined that public interest required v. Thomason, 236 S. C. 158, 113 S. E. 
limitation on number which should be 2d 544 (1960). 

§ 8-794.41. Contents of license; posting; nonassignable. 

Each license shall state the address at which the business is to be conducted and 
fully the name of the licensee, and if the licensee is a copartnership or association, 
the names of the members thereof, and if a corporation, the date and place of its in- 
corporation. Each license shall be kept posted in the licensed place of business and 
shall not be transferable or assignable. 

1957 (50) 339. 

License non-assignable by express pro- Finance Corp. v. West Side Finance Co., 
visions of this section. South Carolina 236 S. C. 109, 113 S. E. 2d 329 (1960). 

§ 8-794.42. Term; annual renewal fee. 

Each license shall remain in full force and effect until surrendered, revoked or 
suspended as provided by §§ 8-794.43, 8-794.44 and 8-794.45. Each licensee shall, 
on or before the tenth day of each December, pay to the Board the sum of two 

154 



§ 8-794.43 1960 Cumulative Supplement § 8-794.48 

hundred dollars for each license held by such licensee, as a license fee for the suc- 
ceeding calendar year. 
1957 (50) 339. 

§ 8-794.43. Surrender of license. 

Any licensee may surrender any license by delivering it to the Board with written 
notice of its surrender but such surrender shall not affect his civil or criminal lia- 
bility for acts committed prior thereto. 

1957 (50) 339. 

§ 8-794.44. Suspension of license. 

If the Board finds that probable cause for revocation of any license exists and 
that enforcement of the chapter requires immediate suspension of such license pend- 
ing investigation, it may, upon ten days written notice and a hearing, enter an 
order prohibiting such licensee from making any loans for a period not exceeding 
thirty days. 

1957 (50) 339. 

§ 8-794.45. Revocation of license; notice; hearing; grounds. 

The Board may, if it has reason to believe that grounds for revocation of a license 
may exist, notify the licensee not less than thirty days before revoking the license 
and it shall specify in the notice the particulars of the alleged grounds for revoca- 
tion, and shall offer the licensee proper opportunity to be heard in answer thereto. 
The reason or reasons for revocation of a license shall be one or more of the fol- 
lowing: 

( 1 ) The licensee has failed to pay the annual license fee ; 

(2) The licensee, either knowingly or without the exercise of due care to pre- 
vent the same, has violated any provisions of this chapter or any regulation or order 
lawfully made pursuant to and within the authority of this chapter; 

(3) The licensee has failed to file additional bond as required by § 8-794.36. 
1957 (50) 339. 

§ 8-794.46. Order of revocation or suspension; service. 

Whenever the Board shall revoke or suspend a license issued pursuant to this 
chapter, it shall enter an order to that effect and forthwith notify the licensee of 
the revocation or suspension. Within five days after the entry of such an order it 
shall place on file its findings of fact and a summary of the evidence supporting them 
and forthwith deliver a copy to the licensee. 

1957 (50) 339. 

§ 8-794.47. Reinstatement of suspended license; issuance of new license to 
former licensee whose license revoked. 

The Board may reinstate suspended licenses or issue new licenses to a person 
whose license has been revoked if no fact or condition then exists which clearly 
would have justified the Board in refusing originally to issue such license under 
this chapter. 

1957 (50) 339. 

§ 8-794.48. Amendments to chapter may effect certain license cancellations. 

This chapter or any part thereof may be modified, amended or repealed so as to 
effect a cancellation or alteration of any license or right of a licensee hereunder if 
such cancellation or alteration shall not impair or affect the obligations of any pre- 
existing lawful contract between any licensee and any obligor. 

1957 (50) 339. 

155 Volume 1 



§ 8-794.49 Code of Laws of South Carolina § 8-794.75 

§ 8-794.49. Contracts between licensee and obligors not impaired by suspen- 
sion, revocation or surrender of license. 

No revocation, suspension or surrender of any license shall impair or affect the 
obligation of any pre-existing lawful contract between the licensee and any obligor. 

1957 (50) 339. 

Article 3. 

Places of Business; Records and Reports. 

§ 8-794.71. Conduct business separately from other businesses ; illegal conduct. 

No licensee shall conduct the business of making loans under this chapter within 
any office, room or place of business in which any other business is solicited or 
engaged in, or in association or conjunction therewith. If the Board shall find, after 
a hearing, that the conduct of such business by the licensee concealed evasions of 
this chapter or of the rules and regulations made hereunder, it shall order such 
licensee in writing to desist from such conduct. 

1957 (50) 339. 

§ 8-794.72. Change of place of business. 

No change in the place of business for the making and collecting of loans made 
pursuant to this chapter of a licensee to a location outside of the original city or 
town shall be permitted under the same license. When a licensee wishes to change 
his place of business within a city or town he shall give written notice thereof to 
the Board accompanied by the license certificate and the Board shall engross the 
address change upon the certificate and return it to the licensee. 

1957 (50) 339. 

§ 8-794.73. Books and records ; time preserve. 

Each licensee shall keep and use in his business such full and correct books and 
accounting records as are in accordance with sound and accepted accounting prin- 
ciples and practices and such books and records, including cards used in the card 
system, if any, as are in accord with the rules and regulations lawfully made by 
the Board. Each licensee shall preserve such books, accounts and records, including 
cards used in the card system, if any, for at least two years after making the final 
entry on any loan recorded thereon. The renewal or refinancing of a loan shall not 
constitute a final entry. 

1957 (50) 339. 

§ 8-794.74. Annual reports ; Board publish analysis. 

Every licensee shall file in the office of the Board on or before the first day of 
April a report for the preceding calendar year. The report shall give information 
with respect to the financial condition of such licensee and shall include (a) the 
name and address of the licensee, (b) balance sheets at the beginning and end of 
the accounting period, (c) a statement of income and expenses for the period, (d) 
a reconciliation of surplus with the balance sheets, (e) a schedule of assets used and 
useful in the small loan business in the State, (f) an analysis of charges, size of 
loans and types of security on loans, (g) an analysis of delinquent accounts, 
(h) court actions undertaken to effect collections and (i) such other relevant in- 
formation in form and detail as the Board may prescribe. Such report shall be made 
under oath and shall be in the form prescribed by the Board, which shall make and 
publish annually an analysis and recapitulation of such reports. 

1957 (50) 339. 

§ 8-794.75. Other reports. 

In addition to the report required by the provisions of § 8-794.74, the Board may 
under rules and regulations promulgated by it require quarterly and semiannual 

156 



§ 8-794.91 1960 Cumulative Supplement § 8-794.94 

reports from licensees to facilitate the performance of its duties and to effectively 
regulate the making of loans under this chapter. 

1957 (50) 339. 

Article 4. 

Loans. 

§ 8-794.91. Loans with cash advance of two hundred dollars or less payable in 
monthly instalments ; computation of instalments ; minimum in- 
stalment. 

A licensee may lend any sum of money or credit, or both, by cash advance in the 
amount of two hundred dollars or less, with or without security, and may aggregate 
the cash advance, the interest provided for in § 8-794.92 and the initial charge pro- 
vided for in § 8-794.93 at the date of the loan for the entire period of the loan and 
then divide the amount thus aggregated by the number of the monthly payment 
periods contracted for to determine the amount of each substantially equal periodic 
installment, not including the monthly or weekly charge provided for in § 8-794.94 
or § 8-794.97. And in no event shall the amount of each monthly installment, 
exclusive of the monthly charge, be less than ten dollars. 

1957 (50) 339. 

§ 8-794.92. Interest on such loans. 

A licensee making a loan authorized in § 8-794.91 may charge, contract for and 
collect interest in an amount not in excess of six dollars per one hundred dollars 
of the amount of the loan if the loan is repayable over a period of one year and 
at that rate for greater or lesser periods of time or for greater or lesser amounts. 

1957 (SO) 339. 

§ 8-794.93. Initial charge on such loans. 

A licensee making a loan authorized in § 8-794.91 may charge, contract for and 
collect, at the time of the making of any loan, an initial charge in such an amount 
as may be agreed upon in writing with the borrower, but not to exceed six per cent 
of the cash advance, for the expenses then or theretofore incurred and the services 
then or theretofore rendered by the lender incident to the said loan or the security 
therefor, such as investigating the moral and financial standing of the borrower, 
investigating the security, title and similar investigations and for closing the loan, 
including all expenses incurred or services rendered at the request of the borrower 
or on his behalf, in connection with the loan, but such initial charge shall not 
be contracted for, collected or received on any renewal or other loan made to the 
same borrower more often than once in an eight-week period for a loan in excess of 
twenty dollars ; proindcd, that upon any loan made to such a borrower of a sum 
in excess of the amount on which such initial charge may have been paid within 
the preceding sixty days, then such initial charge may be contracted for, collected 
or received on such excess. 

1957 (50) 339. 

Initial charge may be collected only made within eight-week period, since time 
once in eight-week period. — Initial charge element commences at time first loan was 
on original loan may not be refunded and consummated. Atty. Gen. Off. Op. No. 576, 
like amount collected on subsequent loan Apr. 21, 1959. 

§ 8-794.94. Monthly default charge on such loans. 

A licensee making a loan authorized in § 8-794.91 may charge, contract for and 
collect on and after the date in each succeeding month corresponding to the date 
of making and granting the loan for each elapsed month a monthly charge in such 
an amount as may be agreed upon in writing with the borrower, not in excess of 
one dollar and seventy-five cents per month, for expenses or the fair and reasonable 

157 



§ 8-794.95 Code of Laws of South Carolina § 8-794.97 

value of service subsequent to the making of the loan arising out of or deemed 
probable by the parties to arise out of the agreement to repay in a series of install- 
ments, the default of the borrower, or in connection with such loan, the security 
therefor or the collection thereof or any part thereof, or the facilitation of such col- 
lection and for analyzing and readjusting the budget of the borrower. 
1957 (SO) 339. 

§ 8-794.95. Additional charges prohibited; delinquent charge and certain ex- 
penses permitted. 

In addition to the interest, charges and fees provided for by this chapter, no 
further or other amount whatsoever shall be directly or indirectly charged, con- 
tracted for, or received, except that a licensee may, if agreed to in writing, contract 
for, impose and collect a delinquent charge of Ave cents per dollar for each full 
dollar of an installment which is delinquent for five or more days, which charge 
may be imposed only once on each delinquent installment. However, such restriction 
shall not apply to the actual fees paid a public official or agency of a state for filing, 
recording or releasing any instrument securing the loan, or actual and reasonable 
attorney fees as determined by the court in which suit is filed and court costs in- 
curred in the collection in default, or to the actual and reasonable expenses of re- 
possession, storing and selling of any property pledged as security on any contract 
in default, insurance premiums or identifiable charges for group insurance authorized 
in §§ 8-794.121 to 8-794.128. 

1957 (50) 339. 

§ 8-794.96. Interest and charges when cash advance in excess of two hundred 
dollars; computation of monthly instalments. 

If a licensee makes a cash advance in excess of two hundred dollars, he may 
contract for, collect and receive interest and charges prescribed in §§ 8-794.91 to 
8-794.94 on that part of the cash advance not in excess of two hundred dollars. On 
such portion of the cash advance in excess of two hundred dollars a licensee may 
charge, contract for and receive interest and charges in an amount not to exceed 
seven dollars per one hundred dollars of such additional cash advance where the 
loan is payable over a period of one year and proportionately at that rate for 
greater or lesser periods of time, or for greater or lesser amounts. Such interest and 
charges must be aggregated by adding them to the cash advance and dividing the 
total thereof by the number of monthly payment periods contracted for to determine 
the amount of each substantially equal monthly installment. 

In addition to the above, a licensee shall not contract for or receive directly or in- 
directly any further interest, charges or compensation on loans in excess of two 
hundred dollars except as prescribed in § 8-794.95. 

1957 (50) 339. 

§ 8-794.97. Weekly instalments permitted on loans with cash advances of one 
hundred dollars or less ; computation ; minimum instalment. 

On loans where the cash advance is in the amount of one hundred dollars or less, 
a licensee may contract for a weekly instalment schedule in lieu of the monthly 
instalment schedule provided in § 8-794.91 and may determine the amount of each 
substantially equal periodic instalment provided for therein by dividing the amounts 
aggregated according to said section by the number of weekly payment periods 
contracted for, and may contract for, collect and receive in lieu of the monthly 
charge provided for in § 8-794.94 a weekly charge for each elapsed week in an 
amount not in excess of forty-five cents per week. In no event shall the amount of 
each weekly instalment, exclusive of the weekly charge, be less than two dollars and 
fifty cents. 

1957 (50) 339. 

158 






§ 8-794.98 1960 Cumulative Supplement § 8-794.105 

§ 8-794.98. Loans to be in name of licensee. 

No licensee shall make any loan provided for by this chapter under any name 
other than that stated in the license. 

1957 (SO) 339. 

§ 8-794.99. Maturity of loans. 

All loans governed by this chapter shall mature within twenty-four months from 
the date of the loan contract. 

1957 (50) 339. 

§ 8-794.100. Chattel mortgage on household furniture. 

No licensee shall take any chattel mortgage or other lien on household furniture 
then in possession and use of the obligor unless it is in writing and signed by the 
obligor, and in case of a married obligor, unless given with the consent of the spouse 
and such consent shall be evidenced by the spouse in the mortgage or other lien 
by the signing of his or her name thereto. The written consent shall not be required 
when husband and wife have been living separate and apart for a period of at least 
five months prior to the making of such mortgage or when such spouse is legally 
incompetent. 

1957 (50) 339. 

§ 8-794.101. Information loan obligation to disclose; complete papers before 
execution. 

No licensee shall take any obligation evidencing a loan which does not disclose 
the amount of the loan, a schedule of the payments, the amount of the interest, 
charges and amounts disbursed for the account of the borrower, nor shall the 
licensee take any instrument in which the blanks are left to be filled in after 
execution. 

1957 (50) 339. 

§ 8-794.102. Licensee give borrower copy of obligation. 

At the time of making any loan the licensee shall deliver to the customer a copy 
of the legal instrument evidencing the obligation, which shall disclose the full de- 
tails of the transaction. 

1957 (50) 339. 

§ 8-794.103. Payment of loan prior to maturity. 

Any balance to become payable under any loan contract made under the provi- 
sions of this chapter may be repaid in full prior to maturity. When such balance 
is so repaid before maturity, whether by payment in cash, a new loan, renewal or 
otherwise, the unearned portion of the interest shall be refunded or credited to the 
borrower. The amount of the refund credit shall represent at least as great a pro- 
portion of the total interest as the sum of the periodical time balances after the date 
of prepayment bears to the sum of all periodical time balances under the schedule 
of payments in the loan contract. 

1957 (50) 339. 

§ 8-794.104. Cash payment receipts. 

For each payment in cash made on any loan the licensee shall furnish a full and 
complete receipt. 

1957 (50) 339. 

§ 8-794.105. Satisfaction of debt and return of security when loan paid. 

Upon payment of any loan in full the licensee shall return to the customer, 
marked "paid," the note or other evidence of indebtedness of the loan and the 

159 



§ 8-794.106 Code of Laws of South Carolina § 8-794.123 

security signed by any obligor and release any mortgage, restore any pledge and 
cancel and return any note and any assignment given to the licensee. 
1957 (50) 339. 

§ 8-794.106. Loan contracts violating § 8-794.31 void. 

Any contract of loan, the making or collecting of which violates § 8-794.31, shall 
be void and the lender may not collect, receive or retain any principal, interest or 
charges whatsoever. 

1957 (50) 339. 

§ 8-794.107. Intentional excess charges to void loan contract; penalties. 

If any amount in excess of the charges permitted by this chapter is charged, 
contracted for or received, except as the result of an accidental or bona fide error, 
the contract of loan shall be void, and the licensee may not collect or receive any 
principal, interest, charges or recompense whatsoever. The licensee and the several 
members, officers, directors and agents thereof who shall have participated in such 
violation shall be guilty of a misdemeanor and upon conviction thereof shall be 
punishable by a fine of not more than five hundred dollars and not less than two 
hundred dollars or not less than thirty days or more than six months. 

1957 (50) 339. 

Cross reference. — Commissions, divi- ance premiums not considered a charge, 
dends, etc. received by licensee on insur- § 8-794.128. 

§ 8-794.108. Additional contracts for purpose of increasing cost to borrowers 
prohibited. 

No licensee shall induce or permit any person, nor any husband and wife, jointly 
or severally, to become obligated directly or contingently, or both, under more than 
one contract of loan at the same time, for the purpose of or with the result of 
obtaining a higher rate of interest or greater charge than would otherwise be per- 
mitted by this chapter. 

1957 (50) 339. 

Article 5. 

Insurance on Property Securing Loan and on Borrower. 

§ 8-794.121. May require and sell personal property, life and earning capacity 
insurance. 

Subject to the conditions provided in this article and notwithstanding any other 
provisions of this chapter, reasonable insurance may be sold to and required of the 
borrower for insuring personal property securing a loan and for insuring the life 
and earning capacity of one party obligated on a loan. 

1957 (50) 339. 

§ 8-794.122. Property insurance. 

Property insurance shall be in an amount not to exceed the reasonable value of 
the property insured and for the customary term approximating the term of die 
loan contract. It shall be optional with the borrower to obtain such insurance in 
an amount greater than the amount of the loan or for a longer term. 

1957 (50) 339. 

§ 8-794.123. Life, accident and health insurance. 

Life insurance shall be in an amount not to exceed the approximate amount of 
the loan and for a term not exceeding the approximate term of the loan contract. 
Accident and health insurance shall provide for periodic benefits which shall not 
exceed an amount which approximately equals the amount of each periodic instal- 
ment payment to be made under the loan contract. Whenever a loan is discharged 

160 



§ 8-794.124 1960 Cumulative Supplement § 8-794.141 

or a new policy of insurance is issued, such insurance on such prior obligation shall 
be cancelled and the unearned portion of the insurance premium or identifiable 
charge shall be refunded to the borrower. 
1957 (SO) 339. 

§ 8-794.124. Insurance bear reasonable relation to existing hazard or risk of 
loss; agencies and companies write. 

All insurance sold or provided pursuant to this article shall bear a reasonable 
and bona fide relation to the existing hazard or risk of loss and shall be written 
by an agent or agency licensed in this State and by an insurance company authorized 
to conduct such business in this State. 

19S7 (50) 339. 

§ 8-794.125. Purchase of insurance from licensee not to be condition precedent 
to making of loan ; existing insurance. 

A licensee shall not require the purchasing of insurance from the licensee or any 
employee, affiliate, or associate of the licensee, as a condition precedent to the mak- 
ing of a loan and shall not decline existing insurance where such insurance is 
provided by an insurance company authorized to conduct such business in this State. 

1957 (50) 339. 

§ 8-794.126. Licensee furnish borrower copy of policy procured through him. 

The licensee shall within thirty days after the loan is made, deliver to the bor- 
rower, or if more than one, to one of them, a policy or certificate of insurance 
covering any insurance procured by or through the licensee or any employee, 
affiliate or associate of the licensee, which shall set forth the amount of any premium 
or identifiable charge which the borrower has paid or is obligated to pay, the amount 
of insurance, the term of insurance and a complete description of the risks insured. 
Such policy or certificate may contain a mortgage clause or other appropriate pro- 
visions to protect the insurable interest of the licensee. 

1957 (50) 339. 

§ 8-794.127. Insurance on loans in excess of two hundred dollars. 

Insurance written in connection with loans in excess of two hundred dollars shall 
be written according to the conditions and limitations prescribed in this article. 
1957 (50) 339. 

§ 8-794.128. Commissions and dividends of licensee not considered as addi- 
tional interest or charges. 

Notwithstanding any other provision of this chapter, any gain or advantages in 
the form of commission, dividend, identifiable charge or otherwise, to the licensee 
or to any employee, affiliate or associate of the licensee from insurance provided for 
in §§ 8-794.121 to 8-794.124 or its sale shall not be deemed to be additional or 
further interest or charge in connection with such a loan. 

1957 (50) 339. 

Article 6. 
Examinations ; Investigations; Orders to Desist. 
§ 8-794.141. Examinations ; payment of cost. 

At least once each year a duly authorized representative of the Board shall visit 
each place of business of each licensee and thoroughly inspect and examine its 
affairs, including the loans, transactions, books, papers, annual reports required by 
§ 8-794.74 and records of such licensee so far as they pertain to the business licensed 
under this chapter. The actual cost of any examination shall be paid to the Board 

161 



§ 8-794.142 Code of Laws of South Carolina § 8-794.161 

by each licensee so examined, with the exception of the first examination in each 
licensed year, and the Board may maintain an action for such costs in any court of 
competent jurisdiction. 
1957 (50) 339. 

§ 8-794.142. Investigations. 

For the purpose of discovering violations of this chapter or of securing informa- 
tion lawfully required hereunder, the Board or its duly authorized representatives 
may at any time investigate the business and examine the books, accounts, papers 
and records used therein of (a) any licensee, (b) any other person engaged in the 
business described in § 8-794.31 or participating in such business as principal, 
agent, broker or otherwise and (c) any person whom the Board has reasonable 
cause to believe is violating or is about to violate any provision of this chapter, 
whether or not such person shall claim to be within the authority or beyond the scope 
of this chapter. For the purposes of this section, any person who shall advertise for, 
solicit or hold himself out as willing to make loan transactions in the amount of or 
the value of two hundred dollars or less shall be presumed to be engaged in the 
business described in § 8-794.31. 

1957 (50) 339. 

§ 8-794.143. Inspection of records and premises; attendance of witnesses. 

For the purposes of § 8-794.142, the Board or its duly authorized representatives 
may have free access to the offices and places of business, files, safes and vaults of 
all such persons, and may require the attendance of any person and examine him 
under oath relative to such loans or such business or to the subject matter of any 
examination, investigation or hearing. 

1957 (50) 339. 

§ 8-794.144. Order to desist from violating chapter ; injunctions ; receivers. 

Whenever the Board has reasonable cause to believe that any person is violating, 
is threatening to or intends to violate any provisions of this chapter, it may, in 
addition to all the actions provided for in this chapter and without prejudice thereto, 
enter an order requiring such person to desist or refrain from such violations ; and if 
it deems it necessary the Board shall apply to a judge of the circuit court to issue an 
injunction restraining the licensee, in whole or in part, from proceeding, engaging in 
or continuing such violation or from doing any act in furtherance thereof. The judge 
may issue an injunction forthwith, and upon notice and after a full hearing of the 
matter, may (a) dissolve or modify the injunction or make it permanent, (b) make 
all orders and judgments needful in the matter and (c) appoint agents or a receiver 
to take possession of the property and effects of the licensee and settle his affairs 
subject to such rules and orders as the court shall prescribe from time to time. 

1957 (50) 339. 

Article 7. 

Judicial Review of Orders of Board. 

§ 8-794.161. Circuit court may review on petition. 

Any order or decision made, issued or executed by the Board or its deputies 
6hall be subject to review by the circuit court on petition by any person aggrieved 
if the petition is filed within thirty days from the date of the delivery of a copy 
of the order or decision made by the Board upon such person. A copy of such 
petition for review as filed with and certified by the clerk of court shall be served 
upon the Board within five days after its filing. 

1957 (50) 339. 

Stated in Board of Bank Control v. 
Thomason, 236 S. C. 158, 113 S. E. 2d 
544 (1960). 

162 



§ 8-794.162 1960 Cumulative Supplement § 8-794.166 

§ 8-794.162. Failure file petition waiver of right of review. 

If the petition for review is not filed within thirty days, the parties aggrieved 
shall be deemed to have waived the right to have the merits of the order or decision 
reviewed and there shall be no trial of the merits thereof by any court to which appli- 
cation may be made by petition or otherwise to enforce or restrain the enforcement 
of same. 

1957 (50) 339. 

§ 8-794.163. Jurisdiction of the court. 

The court shall have jurisdiction to review the facts and the law and to affirm, 
modify or set aside the order or decision of the Board and restrain the enforcement 
thereof. 

1957 (50) 339. 

Judicial review limited. — Function vested tion provides for only a limited review, 

by this chapter in State Board of Bank Board of Bank Control v. Thomason, 236 

Control of determining whether license S. C. 158, 113 S. E. 2d 544 (1960). 

should be issued is non-judicial in nature, Court should not substitute is judgment 

and in line with rule that in order not for that of Board as to whether a license 

to offend constitutional requirement as to should be issued, and can only set aside 

separation of powers, statutes undertaking decision of Board which is illegal, arbitrary 

to give courts de novo review of orders of or unsupported by substantial evidence, 

administrative bodies exercising non-judicial Board of Bank Control v. Thomason, 236 

functions are generally construed as pro- S. C. 158, 113 S. E. 2d 544 (1960). 
viding for only a limited review, this sec- 

§ 8-794.164. Board furnish transcript of record and order ; hearing. 

The Board shall within thirty days, unless the time is extended by an order of 
the court, after the service of the copy of the petition for review upon it or its 
deputy, prepare and file with the clerk of the court a complete transcript of the 
record of the hearing, if any, and a true copy of the order or decision duly certified. 
The case shall be heard by the court as a civil case upon such transcript of the record 
and the court shall hear and determine the petition with all convenient speed. If, 
on the hearing before the court, it shall appear that the record filed by the Board 
is incomplete, the court may by appropriate order direct the Board to certify 
all parts of the record so omitted. 

1957 (50) 339. 

§ 8-794.165. Appeals. 

Appeals from all final orders and judgments entered by the circuit court in re- 
viewing the orders and decisions of the Board may be taken to the Supreme Court 
by any party to the action as in other civil cases. 

1957 (50) 339. 

§ 8-794.166. Supersedeas. 

The commencement of proceedings under this article shall not operate as a stay 
of the Board's order or decision unless ordered by the court. 
1957 (50) 339. 



163 



§ 8-811 Code of Laws of South Carolina § 8-882 

CHAPTER 8. 
The Negotiable Instruments Law. 

Article 2. 
Form and Interpretation. 
§ 8-811. Form of negotiable instruments. 

The notation on a check "1941 Ford the check was given, the statement of the 

Coach" could not be construed to affect consideration of a note does not affect its 

the negotiable character of the instrument, negotiability. Bank of Fort Mill v. Rollins, 

for, even if it should be construed as a 217 S. C. 464, 61 S. E. 2d 41 (1950). 
statement of the consideration for which 

§ 8-818. When payable on demand. 

A check in which no time for payment this section. Bank of Fort Mill v. Rollins, 
is stated is a demand instrument under 217 S. C. 464, 61 S. E. 2d 41 (1950). 

Article 3. 
Consideration. 
§ 8-845. Effect of failure of consideration. 

Sufficiency of consideration. — Some valid Defense not available against holder in 

or valuable consideration is all that is re- due course. Carolina Housing & Mortgage 

quired to support undertaking of a party Corp. v. Reynolds, 230 S. C. 491, 96 S. E. 

to a bill or note, and if such a consideration 2d 485 (1957). 

exists, its adequacy or sufficiency as com- Where holder of last of series of renewal 

pared to value of thing promised is ordi- notes was original payee, maker may show 

narily immaterial, in absence of fraud, mis- prior payments. — Where holder of the last 

take or undue influence. Shocket v. Fick- of a series of renewal notes was original 

ling, 229 S. C. 412, 93 S. E. 2d 203 (1956). payee and not holder in due course without 

If there is a sufficient consideration in notice, maker entitled to accounting from 

form of transfer of property, the considera- date of original note and to proffer testi- 

tion does not fail because the property sub- mony as to payments allegedly made prior 

sequently proves or becomes of little or no to date of last note. Johnston v. Farmers 

value. Shocket v. Fickling, 229 S. C. 412, and Merchants Bank, 229 S. C. 603, 93 

93 S. E. 2d 203 (1956), S. E. 2d 916 (1956). 

§ 8-846. Liability of accommodation party. 

Application of section. — Where husband unchanged deposit and caused bank to as- 

gave note to bank on which wife was sign the note to a corporation of which 

endorser without receiving value therefor, he was president and owner of 98% of the 

and proceeds of loan were deposited in hus- stock, the corporation was not a holder for 

band's special account for a particular pur- value and took the note subject to all 

pose, such deposit being under control of equities and defenses in favor of wife as 

bank, and when purpose had been fulfilled an accommodation party. Clanton v. Clan- 

and husband gave bank check for original ton, 229 S. C. 412, 92 S. E. 2d 878 (1956). 

Article 4. 
Negotiation. 
§ 8-855. Special endorsement; endorsement In blank. 

Endorsement of check without designat- under this section, "an instrument so en- 

ing endorsee. — Where check contained the dorsed is payable to bearer, and may be 

name of the payee written on the back of negotiated by delivery". Bank of Mill ▼. 

it, without any designated endorsee, this Rollins, 217 S. C. 464, 61 S. E. 2d 41 (1950). 
constituted an endorsement in blank, and, 

Article 5. 
Rights of the Holder. 
§ 8-882. Who is holder in due course. 

Bank cashing check for payee held v. Rollins, 217 S. C. 464, 61 S. E. 2d 41 
holder in due course. Bank of Fort Mill (1950). 

164 



8-883 



1960 Cumulative Supplement 



§ 8-981 



§ 8-883. When person not deemed holder in due course. 

Cashing check on day after issuance not 
unreasonable delay. — Where plaintiff cashed 
check for payee on the day after its is- 
suance by defendant, there was no unrea- 
sonable delay in negotiating the check 

§ 8-885. When title defective. 

For related case, see Thomas & Howard 
Co. v. Fowler, 225 S. C. 354, 82 S. E. 2d 454 
(1954), in which it was held that statement 
by plaintiff's agent that unless defendants 
secured their indebtedness to plaintiff by a 

§ 8-886. What constitutes notice of infirmity. 



which would, of itself, prevent plaintiff 
from being a holder in due course. Bank 
of Fort Mill v. Rollins, 217 S. C. 464, 61 
S. E. 2d 41 (1950). 



mortgage plaintiff would have defendants 
closed up, was nothing more than threat 
that unless secured, plaintiff would resort 
to legal proceedings to collect its account, 
and did not constitute duress. 



Meaning of term "bad faith". — As used 
in this section "bad faith" is lack of fair 
dealing by which taker of instrument ob- 
tained an unfair advantage and is akin to 
equitable doctrine of clean hands. Carolina 
Housing & Mortgage Corp. v. Reynolds, 
230 S. C. 491, 96 S. E. 2d 485 (1957). 

Sufficiency of knowledge of defect. — In 
accord with paragraph under this catchline 
in Code. See Carolina Housing & Mort- 
gage Corp. v. Reynolds, 230 S. C. 491, 96 
S. E. 2d 485 (1957). 

Where purchaser of note paid value for 
it before maturity, which note was given 
in payment for repairs and improvements 
to maker's residence, and before purchaser 
viewed premises and determined that re- 
pairs had been made, fact that inspection 

§ 8-887. Rights of holder in due course. 

Bank cashing check for payee was a 
holder in due course for value of the check 
and held same free of any defenses which 
the maker might have had against the 
pavee. Bank of Fort Mill v. Rollins, 217 
S. C. 464, 61 S. E. 2d 41 (1950). 

And fact that check was subject to stop- 
payment order was no defense. — Fact that 
check was subject to stop-payment in- 



was possibly done without due care vio- 
lated no legal duty to maker because no 
such duty existed, and purchaser was 
holder in due course and partial failure of 
consideration not available as defense. 
Carolina Housing & Mortgage Corp. v. 
Reynolds, 230 S. C. 491, 96 S. E. 2d 485 
(1957). 

Ordinarily, knowledge of consideration 
not notice of subsequent failure of conside- 
ration, nor is purchaser of bill or note 
bound to inquire as to whether considera- 
tion has failed or will fail. Carolina Hous- 
ing & Mortgage Corp. v. Reynolds, 230 
S. C. 491, 96 S. E. 2d 485 (1957). 

Quoted in Bank of Fort Mill v. Rollins, 
217 S. C. 464, 61 S. E. 2d 41 (1950). 



structions by the maker could not avail 
the maker as a valid defense in action 
against him brought by bank which cashed 
check for pavee. Bank of Fort Mill v. Rol- 
lins, 217 S. C. 464, 61 S. E. 2d 41 (1950). 

Quoted in Carolina Housing & Mort- 
gage Corp. v. Reynolds, 230 S. C. 491. 96 
S. E. 2d 485 (1957). 



Article 6. 
Liability of Parties. 



other parties to the paper, who in some 
form or other are entitled to have final 
recourse to him. Bank of Fort Mill v. Rol- 
lins, 217 S. C. 464, 61 S. E. 2d 41 (1950). 



§ 8-891. Contract of maker. 

The maker's liability on the instrument 
Is primary and unconditional until pay- 
ment. He remains the ultimate debtor, the 
person who ought to pay the debt, in pref- 
erence to, and in exoneration of, all the 

§ 8-896. Effect of negotiation by delivery or qualified endorsement. 

Applied in Carolina Hous. & Mtg. Corp. 
v. Orange Hill A. M. E. Ch., 230 S. C. 498, 
97 S. E. 2d 28 (1957). 

Article 10. 
Form and Interpretation of Bills of Exchange. 
§ 8-981. Definition of bill of exchange. 

Quoted in Bank of Fort Mill v. Rollins, 
217 S. C. 464, 61 S. E. 2d 41 (1950). 

165 



§ 8-1072 Code ok Laws of South Carolina § 9-18 

Article 17. 
Promissory Notes and Checks. 
§ 8-1072. Definition of check. 

Applied in Bank of Fort Mill v. Rollins, 
217 S. C. 464, 61 S. E. 2d 41 (1950). 



Title 9. 

Boards and Commissions. 

Chap. 1. Historical Commission, §§ 9-1 to 9-16. 
1.1. Archives, §§ 9-17 to 9-34. 

3. Reorganization Commission, § 9-206. 

4. Research, Planning and Development, §§ 9-302 to 9-310. 

7. Cemeteries, §§ 9-551 to 9-630. 

8. Committee Investigate Communist Activities, §§ 9-701 to 9-711. 

CHAPTER 1. 

Historical Commission. 
Sec. 
9-1 to 9-16. [Repealed.] 

§§ 9-1 to 9-16. Personnel; annual meeting and report. 

Repealed by A. & J. R. 1954 (48) 1752. 

Cross reference. — See now §§ 9-17 et 
seq. for new legislation on archives. 

CHAPTER 1.1. 

Akchives. 

Sec. Sec. 

9-17. Designation of chapter. 9-26. Archives Council. 

9-18. Objectives and purposes of Depart- 9-27. Rules and regulations; seal; gifts; 

ment. reports; policies. 

9-19. Commission control Department; 9-28. The South Carolina Archives. 

personnel. 9-29. Availability and protection of records; 

9-20. Selection and appointment of non- copies. 

ex officio members; term; va- 9-30. Commission publish certain informa- 

cancy. tion relating to public records. 

9-21. Chairman; vice-chairman; meetings. 9-31. State records transfer to Commission. 

9-22. Expenses; per diem. 9-32. County records transfer to Depart- 

9-23. Director; other staff members. ment. 

9-24. Director not to do other work for 9-33. Acceptance of private records; public 

pay; furnish free information. examination. 

9-25. Director assist in preservation of 9-34. Destruction of records. 

public records. 

§ 9-17. Designation of chapter. 

This chapter may be cited as the Archives Act. 
1954 (48) 1752. 

§ 9-18. Objectives and purposes of Department. 
The objectives and purposes of the South Carolina Archives Department shall be: 

(1) The preservation and administration of those public records that have al- 
ready been transferred to the custody of the Department and those that may be 
transferred and accepted by the Department in the future ; 

(2) The collection by purchase or otherwise of the originals or transcripts of 
public records in other states or counties relating to South Carolina; 

166 



§ 9-19 1960 Cumulative Supplement § 9-23 

(3) The preservation and administration of the private records in the custody 
of the Department and those that may be added by deposit, gift or purchase in the 
future ; 

(4) The editing and publication of documents, treatises, and other papers relating 
to the history of South Carolina; 

(5) The stimulation of research, study and other activity in the field of South 
Carolina history, genealogy and archaeology ; 

(6) The approval of the inscriptions for all historical markers or other monu- 
ments erected on State highways or other State property ; 

(7) The improvement of standards for the making, care and administration of 
public records ; and 

(8) The performance of such other acts and requirements as may be enjoined by 
law. 

1954 (48) 1752. 

§ 9-19. Commission control Department; personnel. 

The South Carolina Archives Department shall be under the control of the 
South Carolina Archives Commission, consisting of four ex officio members, the 
heads, respectively, of the departments of history of the University of South 
Carolina, The Citadel, the Military College of South Carolina, The Clemson 
Agricultural College of South Carolina and Winthrop College, the South Carolina 
College for Women and their successors in their respective offices and three non- 
ex officio members selected and appointed as provided in § 9-20. 

1954 (48) 1752. 

§ 9-20. Selection and appointment of non ex officio members ; term ; vacancy. 

The three non ex officio members shall be nominated, one by the South Carolina 
Historical Society, one by the American Legion, Department of South Carolina 
and one by the South Carolina Historical Association and appointed by the 
Governor. Each shall serve for a term of five years. In case of a vacancy caused by 
the death or resignation of one of the three appointive members, the vacancy shall be 
filled for the unexpired term by that organization which nominated the member 
so vacating. 

1954 (48) 1752. 

§ 9-21. Chairman; vice-chairman; meetings. 

The Commission may elect its chairman and vice-chairman, who shall be chosen 
annually to serve during the fiscal year but who may serve for successive terms. 
The Commission shall hold at the office of the Commission at least one regular 
meeting during the year and as many special meetings as may be necessary. Special 
meetings may be called by the chairman or in his absence by the vice-chairman. 
Four members of the Commission shall constitute a quorum. 

1954 (48) 1752. 

§ 9-22. Expenses; per diem. 

All members of the Commission shall be reimbursed for expenses incurred in 
attending meetings and otherwise performing their duties under the direction of 
the Commission. The members who are not employed by the State shall receive 
the per diem paid by the State to members of boards and commissions during their 
attendance at meetings. 

1954 (48) 1752. 

§ 9-23. Director; other staff members. 

The Commission may elect an executive officer for the Department to be known 
as the Director and on recommendation of the Director appoint all other members of 

167 



§ 9-24 Code of Laws of South Carolina § 9-29 

the staff. The active management and administration of the Department shall be 
committed to the Director, who at the time of his election must have the qualifica- 
tions of special training or experience in archival or historical work. 
1954 (48) 1752. 

§ 9-24. Director not to do other work for pay; furnish free information. 

The Director shall not do any additional work for pay. He shall furnish in- 
formation free to the citizens of the State. 
1954 (48) 1752. 

§ 9-25. Director assist in preservation of public records. 

Upon the request of any State or county official the Director shall examine the 
records in his custody and make recommendations regarding their preservation. 
1954 (48) 1752. 

§ 9-26. Archives Council. 

The South Carolina Archives Council shall consist of the Secretary of State, the 
Attorney General and the State Auditor, ex-ofhcio. The Council shall aid and advise 
the Commission on all matters relating to the transfer of records from the agencies 
in which they were created to the custody of the Commission and more specifically 
act upon the recommendations of the Commission regarding the destruction of use- 
less records in accordance with the procedure prescribed in § 9-34. 

1954 (48) 1752. 

§ 9-27. Rules and regulations; seal; gifts; reports; policies. 

The Commission may : 

(1) Make rules and regulations for its own government and the administration 
of the Department ; 

(2) Adopt a seal for use in official departmental business ; control the ex- 
penditure in accordance with law of such public funds as may be appropriated to the 
Department : 

(3) Accept gifts, bequests and endowments for purposes consistent with the 
objectives of the Department ; 

(4) Make annual reports to the General Assembly of the receipts, disburse- 
ments, work and needs of the Department ; and 

(5) Adopt policies designed to fulfill the duties and attain the objectives of the 
Department as established by law. 

1954 (48) 1752. 

§ 9-28. The South Carolina Archives. 

The name of the State archives building shall be "The South Carolina Archives." 
It shall be occupied by the Commission and shall lie operated by it in fulfilling the 
duties now assigned or which may be assigned by the General Assembly. The 
records, both public and private, in charge of the Commission shall be kept in such 
building. The building shall also provide space for the Confederate relics of the 
State. 

1954 (48) 1752; 1957 (50) 131. 

Effect of amendment. — The 1957 amend- building and provided for permanent build- 
ment eliminated provision for temporary ing and its use and occupancy. 

§ 9-29. Availability and protection of records ; copies. 

The Commission shall cause all records committed to its custody for permanent 
preservation to be arranged and made available to the public, either in original 
form or copies, at reasonable times in the buildings assigned to it for the purpose. 
All restrictions on the use of confidential records imposed by law shall continue 
to apply. The records shall be protected against deterioration, mutilation, loss or 

168 



§ 9-30 1960 Cumulative Supplement § 9-34 

destruction. The Director is the legal custodian of the records in the custody of the 
Commission. He shall upon demand of any person furnish certified copies of the 
records on payment in advance of fees as prescribed by law. Copies thus issued, 
when certified by the Director under the seal of the Department, shall have the 
same legal force and effect as if certified by their original custodian. 
19S4 (48) 1752. 

§ 9-30. Commission publish certain information relating to public records. 

From time to time the Commission shall assemble and publish information re- 
garding paper, ink, filing, binding and any other matter that will be useful in im- 
proving the standards of making, caring for and administering public records. 

1954 (48) 1752. 

§ 9-31. State records transfer to Commission. 

Unless otherwise directed by law, all records of any State agency shall upon 
the termination of the existence and functions of that agency be transferred to the 
custody of the Commission. The head of any active State agency may transfer to 
the Commission such records as are not needed for the transaction of the current 
business of his office. Records from these various sources may be accepted by the 
Commission if they are of the type that should be permanently preserved and the 
necessary space is available in the buildings provided for the preservation of public 
records. 

1954 (48) 1752. 

§ 9-32. County records transfer to Department. 

Any county officer may with the consent of the county governing body and 
the county delegation in the General Assembly, transfer to the Department such 
records legally in his custody as are not needed for the transaction of the current 
business of his office. If in the opinion of the Commission the records so offered 
for transfer are of the type that should be permanently preserved, it may accept 
them, if necessary space is available in the buildings assigned to the Department. 

1954 (48) 1752. 

§ 9-33. Acceptance of private records; public examination. 

The Commission shall not solicit private records, but if its services are neces- 
sary to safeguard such records it may accept, either as a gift or deposit, collections 
offered by their legal owners or custodians. All such papers shall be open to inspec- 
tion and examination for the purpose of research in like manner as are the public 
records. Neither the State nor the Commission shall be responsible for the loss 
of private records accepted for deposit. 

1954 (48) 1752. 

§ 9-34. Destruction of records. 

Any records now in the custody of the Department and any records of defunct 
State agencies transferred in the future to the Department in accordance with the 
provisions of § 9-31 that are found to have no significance, importance or value may 
be recommended for destruction by the Director. Any State officer may recom- 
mend for destruction any records in his custody that have no significance, im- 
portance, value or that he is not required by law to retain in his custody. All such 
recommendations shall be acted on by the Commission, and, if approved they shall 
be referred to the Council. The decision of the Council shall be final, and, if the 
recommendation is approved, the Council shall issue in writing a certificate au- 
thorizing the destruction of the records. An accurate descriptive list of the records 
so disposed of and a record of the disposal itself shall be filed and preserved by the 
Commission and by the department or agency in which the records originated. 

1954 (48) 1752. 

169 



§ 9-206 Code of Laws of South Carolina § 9-304 

CHAPTER 3. 

Reorganization Commission. 

Sec. 

9-206. Composition of Commission. 

§ 9-206. Composition of Commission. 

The State Reorganization Commission shall be composed of thirteen members 
who shall serve for terms of two years, of whom one shall be the chairman of the 
ways and means committee of the House of Representatives, one shall be the 
chairman of the judiciary committee of the House of Representatives, three shall 
be members of the House of Representatives elected by the House of Representa- 
tives, one shall be the chairman of the finance committee of the Senate, one shall 
be the chairman of the judiciary committee of the Senate, three shall be members of 
the Senate elected by the Senate and three shall be appointed by the Governor, one 
of whom may be a member of the State Development Board or some other State 
board, who shall serve ex officio. In the case of a vacancy in the membership of 
the Commission it shall be filled in the manner of the original election or appoint- 
ment. 

1948 (45) 1643; 1954 (48) 1745. 

Effect of amendment.— The amendment 
changed Research, Planning and Develop- 
ment Board to State Development Board. 

CHAPTER 4. 

Research, Planning and Development. 

Sec. Sec. 

9-302. Definitions. 9-310. Additional duties formerly exercised 

9-304. Composition of Board; appointment; by other Boards or Commis- 

term. sions. 

9-306. Officers; meetings; records. 

§ 9-302. Definitions. 

(3) The "Department" means the Department of Development; 

(4) The "Board" means the State Development Board; and 

(5) The "Director" means the Director of Development. 

1945 (44) 156; 1954 (48) 1745. 

Effect of amendment. — The amendment ning and Development Board to State 
changed Department of Research, Plan- Development Board. The section otherwise 
ning and Development to Department of remains effective. 
Development and State Research, Plan- 

§ 9-304. Composition of Board; appointment; term. 

The Department of Development shall be governed by a board consisting of 
fifteen citizens of the State to be appointed by the Governor upon the advice and 
consent of the Senate. One member of the Board shall be appointed from each of 
the fourteen judicial circuits of the State and the other member shall be appointed 
from the State at large. The members having originally been appointed three for 
terms of one year, three for two years, three for three years, three for four years 
and three for five years, respectively, the term of office for each member shall here- 
after be for a period of five years. No member shall be eligible for reappointment 
after the service of two terms. The Governor in making appointments shall give 
due consideration to the rotation of appointees among the counties of each judicial 
circuit. Any vacancy occurring during a term of office shall be filled in the same 
manner as the original appointment but shall be for the unexpired term. 

1945 (44) 156; 1954 (48) 1745; 1959 (51) 437. 

170 



§ 9-306 



1960 Cumulative Supplement 



§ 9-310 



from five to fifteen members, provided for 
one member from each judicial circuit in- 
stead of one from two congressional dis- 
tricts, prohibited service over two terms 
and required Governor to consider rotation 
of appointees among counties of each ju- 
dicial circuit. 



of being elected by Board. 



Editor's note. — Provisions of this section, 
as amended 1959 p. 437, relating to officers 
codified in § 9-306. 

Effect of amendments. — The 1954 amend- 
ment changed Department of Research, 
Planning and Development to Department 
of Development. 

The 1959 amendment increased the Board 

§ 9-306. Officers; meetings; records. 

The member of the Board appointed from the State at large shall be chairman of 
the Board. Any other officers deemed necessary by the Board shall be selected by 
it to serve for such terms as it may designate. All regular meetings of the Board 
shall be public. The Board shall adopt its own rules of procedure and keep adequate 
records of its proceedings. The director shall act as secretary of the Board but 
shall have no vote. 

1945 (44) 156; 1959 (51) 437. 

Effect cf amendment. — The 1959 amend- 
ment (transferred from § 9-304) provided 
for chairman to be member at large in lieu 

§ 9-310. Additional duties formerly exercised by other Boards or Commis- 
sions. 

The former State Planning Board, State Board of Housing, Building Council 
of South Carolina, South Carolina Commerce Development Board, South Carolina 
Intra-Coastal Waterway Commission, South Carolina Board for Promotion of 
External Trade, and Natural Resources Commission having been abolished, the 
State Development Board shall have the following additional duties formerly im- 
posed on said boards, commissions and councils: 

1942 Code §§ 3272, 3442-4, 3442-22, 3442-35, 5271-3, 5271-10, 6031-1, 6734; 1932 Code 
§§ 3272, 6734; 1925 (34) 160; 1929 (36) 254; 1933 (38) 176, 478; 1934 (38) 1314; 1935 
(39) 120, 397; 1938 (40) 1612, 1902; 1940 (41) 1921; 1942 (42) 1680; 1945 (44) 156; 
1954 (48) 1745. 

Effect of amendment. — The amendment Board in the first paragraph. The section 
changed State Research, Planning and De- otherwise remains effective, 
velopment Board to State Development 

CHAPTER 7. 
Cemeteries.* 



Article 1. 

Perpetual Care Cemeteries; State Cemetery 
Board, etc. 

Sec. 

9-551. Regulation of perpetual care ceme- 
teries necessary. 

9-552. Appointment and terms of State 
Cemetery Board. 

9-553. Per diem; meetings. 

9-554. Rules and regulations. 

9-555. May require cemeteries selling per- 
petual care lots to be licensed; 
audits. 

9-556. Refusal or renewal of licenses. 

9-557. Maintenance of trust fund. 

9-558. Initial trust fund deposit required. 

9-559. Allocate portion of each sale to trust 
fund. 

9-560. Cemeteries to display signs at en- 
trances. 

9-561. Penalties. 

9-562. Cemeteries exempted. 



Sec. 

9-562.1. Cemetery perpetual care operation 

fund; use of proceeds. 
9-563. Invalidity. 

Article 4. 
Miscellaneous Provisions. 
9-581. When owner of land containing 
abandoned cemetery may remove 
graves. 
9-581.1. Evidence of abandonment. 
9-581.2. New location of graves. 
9-581.3. Supervision of removal of graves; 
payment of expenses. 
Article 10. 
Chester County Abandoned Cemetery 
Board. 
9-601. Created; appointment; duties; care of 
abandoned cemeteries, etc. 
Article 11. 
The Newberry County Cemetery Board. 
9-630. Created; appointment; duties, etc. 



* As to municipal cemeteries see §§ 47-1401 et seq. 

171 



Volume I 



§ 9-551 Code of Laws of South Carolina § 9-555 

Article 1. 
Perpetual Care Cemeteries; State Cemetery Board, etc. 
§ 0-551, Regulation of perpetual care cemeteries necessary. 

It is 1 ereby found to be necessary in the public interest that cemeteries or burial 
grounds advertising or selling "perpetual care" or "endowment care" in connection 
with the sale of cemetery lots or burial spaces be subject to sufficient regulation by 
the State to insure the establishment of sound business practices necessary to furnish 
the perpetual care or endowment care guaranteed. The need for establishing some 
regulation lies in the following facts found to be true : That there is no provision of 
law at the present time requiring the owner or operator of a perpetual care cemetery 
to establish any trust fund whatsoever, and unscrupulous operators can advertise 
and sell perpetual care lots and spaces without making any provision for the future 
furnishing of such services. 

1954 (48) 1767. 

§ 9-552. Appointment and terms of State Cemetery Board. 

There is hereby created a State Cemetery Board to consist of five members for 
the purpose of administering the provisions of this article, four of whom shall be 
appointed by the Governor upon the recommendation of the South Carolina Ceme- 
tery Association and one of whom shall be the Secretary of State, who shall be a 
member, ex officio, and the chairman. The terms of office of the original appointive 
members shall expire on the first day of July of the years 1957, 1958, 1959 and 
1960 and thereafter appointments shall be for a four-year term. The term of office 
of the chairman shall be concurrent with that of the Secretary of State. 

1954 (48) 1767; 1956 (49) 1724. 

Effect of amendment. — The 1956 amend- increased terms of original members and 
ment added the Secretary of State as a fixed regular term at four years instead of 
member and made him chairman, increased three years, 
the appointive members to four from three, 

§ 9-553. Per diem; meetings. 

The members of the Board shall serve without pay other than per diem. The 
Board shall meet at least once a year and shall be subject to the call of the chairman 
at other times. 

1954 (48) 1767; 1956 (49) 1724. 

Effect of amendment. — The 1956 amend- 
ment provided for members to receive per 
diem. 

§ 9-554. Rules and regulations. 

The Board may promulgate all necessary rules and regulations to effectuate the 
purposes of this article. 

1954 (48) 1767. 

Rules and regulations promulgated un- and Regulations, Cemetery Board, State, 
der authority of this section, see Rules in Volume 7. 

§ 9-555. May require cemeteries selling perpetual care lots to be licensed; 
audits. 

The Board may require that each cemetery selling perpetual care lots or grave 
spaces be licensed annually or biennially, and that a fee not exceeding twenty-five 
dollars be paid for each such license or renewal thereof. The board shall audit the 
books of each perpetual care cemetery at least once every two years, and more 
often if necessary, to insure that the cemetery is complying with the provisions of 

172 



§ 9-556 1960 Cumulative Supplement § 9-561 

this article but the board may, in its discretion, accept the sworn statement of a 
certified public accountant as to what the books of the cemetery show with reference 
to its irrevocable trust fund, in lieu of the audit by the board itself. 
1954 (48) 1767. 

§ 9-556. Refusal or renewal of licenses. 

If the provisions of this article are not complied with, the Board may refuse to 
issue a license or renewal thereof to any cemetery. 
1954 (48) 1767. 

§ 9-557. Maintenance of trust fund. 

All cemeteries, whether operated for profit or otherwise, which advertise, hold 
out to the public or sell perpetual care or endowment care in connection with the 
sale or lease of burial lots or grave spaces shall establish and maintain with a State 
or national bank or trust company doing business in this State an irrevocable trust 
fund, the income only of such fund to be available to the cemetery in the furnishing 
of perpetual care. 

1954 (4S) 1767. 

§ 9-558. Initial trust fund deposit required. 

In the case of any cemetery established after March 26 1954, which cemetery 
offers perpetual care or endowment care, an initial deposit of five thousand dollars 
shall be made to the trust fund referred to in § 9-557, and additions thereto shall 
be made as required by § 9-559, as lots or grave spaces are sold. 

1954 (48) 1767. 

§ 9-559. Allocate portion of each sale to trust fund. 

Whenever any cemetery lot or grave space, wherein perpetual care is promised or 
guaranteed, is sold or is contracted to be sold on or after March 26 1954 by any 
cemetery, it shall, within ninety days after such lot or grave space has been paid 
for, transmit to the trustee for addition to the trust fund referred to in § 9-557, 
the sum of six dollars per grave space or ten per cent of the sales price, whichever 
is greater. 

1954 (48) 1767; 1956 (49) 1724. 

Effect of amendment. — The 1956 amend- Deposit required only after payment (n 

ment added "or is contracted to be sold on full for lot or grave space. Atty. Gen. Op. 
or after March 26 1954." Jan. 12, 1956. 

§ 9-560. Cemeteries to display signs at entrances. 

All cemeteries in this State shall display a sign at each entrance, containing 
letters not less than six inches in height, stating "Perpetual Care," "Endowment 
Care," "No Perpetual Care" or "No Endowment Care," dependent upon whichever 
method of operation the cemetery is using. Those cemeteries which furnish per- 
petual care to some portions and no perpetual care to other portions shall display 
the aforesaid signs on the appropriate sections of the cemetery to which the sign 
refers. 

1954 (48) 1767. 

§ 9-561. Penalties. 

Violation of any of the provisions of this article shall constitute a misdemeanor 
and shall be punishable by a fine of one hundred dollars or imprisonment of thirty 
days, or both, for each violation. 

1954 (48) 1767. 

173 



§ 9-562 Code ok Laws of South Carolina § 9-581.2 

§ 0-562. Cemeteries exempted. 

The provisions of this article shall not apply to municipally owned cemeteries, 
eleemosynary cemeteries, church cemeteries or family burying grounds. 

1954 (48) 1767. 

§ 9-562.1. Cemetery perpetual care operation fund; use of proceeds. 

Such sums as are collected by the Board as license fees or otherwise shall be 
deposited with the State Treasurer to be placed in a fund to be designated Cemetery 
Perpetual Care Operation Fund. The fund shall be used to defray the expenses of 
the operation of this article and shall be paid out on warrants signed by the chairman 
of the Board. 

1956 (49) 1724. 

§ 9-563. Invalidity. 

The provisions of this article shall be severable, and if any provision shall be held 
to be unconstitutional, the same shall not affect the validity of the remaining pro- 
visions. 

1954 (48) 1767. 

Article 4. 
Miscellaneous Provisions. 

§ 9-581. When owner of land containing abandoned cemetery may remove 

graves. 

When any person owns any land on which is situated an abandoned cemetery 
or burying ground, and it becomes necessary and expedient in the opinion of the 
governing body of the county or municipality in which the cemetery or burying 
ground is situated to remove the graves, it shall be lawful for such person, after 
thirty days' notice to the relatives of the deceased persons buried therein, if any 
are known, and if no relatives are known, then after thirty days' notice published 
in a newspaper of general circulation in the county where the property lies, and 
if no newspaper is published in the county, then by posting notice in three promi- 
nent places in the county, one of which shall be the courthouse door, to remove 
the graves to a suitable plot in some other cemetery or other suitable location, due 
care being taken to protect tombstones and replace them properly, so as to leave 
the graves in as good condition as before removal. 

1960 (51) 1906. 

§ 9-581.1. Evidence of abandonment. 

The conveyance of the land upon which the cemetery or burying ground is sit- 
uated without reservation of the cemetery or burying ground shall be evidence of 
abandonment for the purposes of §§ 9-581 to 9-581.3. 

1960 (51) 1906. 

§ 9-581.2. New location of graves. 

The plot to which the graves are removed shall be one which is mutually agree- 
able between the governing body of the county or municipality and the relatives 
of the deceased persons. If a suitable plot cannot be agreed upon between the 
parties concerned the matter shall be finally determined by a board of three mem- 
bers which shall be convened within fifteen days after final disagreement on the 
new location of the plot. The board shall be appointed as follows : one member 
shall be appointed by the county or municipality, one member shall be appointed 
by the relatives and a third member shall be selected by the two. The decision of 
the board shall be final. 

1960 (51) 1906. 

174 



§ 9-581.3 1960 Cumulative Supplement § 9-703 

§ 9-581.3. Supervision of removal of graves; payment of expenses. 

All work connected with the removal of the graves shall be done under the su- 
pervision of the governing body of the county who shall employ a funeral director 
licensed by this State. All expenses incurred in the operation shall be borne by 
the person seeking removal of the graves. 

1960 (51) 1906. 

Article 10. 

Chester County Abandoned Cemetery Board. 

§ 0-601. Oreated; appointment; duties; care of abandoned cemeteries, eto. 

Provisions of A. & J. R. 1955 (49) 867 make up this section. 

Article 11. 
The Newberry County Cemetery Board. 
§ 9-630. Created; appointment; duties, etc. 

Provisions of A. & J. R. 1955 (49) 1235 make up this section. 

CHAPTER 8. 

Committee Investigate Communist Activities. 

Sec. Sec. 

9-701. Purpose; appointment, term, vacancy, 9-707. Examination of witnesses; testimony. 

pay and expenses of members. 9-708. Production and examination of rec- 
9-702. Executive secretary or general coun- ords. 

sel; other help. 9-709. Contempt proceedings for failure to 
9-703. Duties. obey summons or testify. 

9-704. Hearings; subpoenas. 9-710. Same; failure to permit examination 
9-705. Issuance and service of subpoenas. or produce record. 

9-706. Oaths. 9-711. Appropriations. 

§ 9-701. Purpose; appointment, term, vacancy, pay and expenses of members. 

In order to supply information as the basis for legislation to preserve the govern- 
ment of this State, there is hereby created a committee to investigate communist 
activities within this State to be composed of six members, three of whom shall be 
appointed by the Speaker of the House of Representatives from the membership of 
that body, and three of whom shall be appointed by the President of the Senate 
from the membership of that body. The terms of the members shall be coterminous 
with their terms as members of the General Assembly and until their successors 
are appointed and qualify. Vacancies shall be filled in the manner of the original 
appointment for the unexpired term. Members shall receive a per diem of ten 
dollars and mileage as is provided by law for members of the General Assembly. 

1958 (50) 1933. 

§ 9-702. Executive secretary or general counsel; other help. 

The committee may employ an executive secretary or general counsel and such 
stenographic and clerical help as is necessary to carry out the provisions of this 
chapter and shall fix the compensation of such employees. 

1958 (50) 1933. 

§ 9-703. Duties. 

The committee shall ; 

(1) Investigate communist activities in this State; 

(2) Make a report of its activities to the General Assembly at each session; 

(3) Offer such advice as it deems appropriate; and 

175 



§ 9-704 Code of Laws of South Carolina § 9-709 

(4) Recommend such legislation as it may determine to be advisable, as a result 
of its investigation, to preserve the government of this State. 
1958 (50) 1933. 

§ 9-704. Hearings; subpoenas. 

The committee, or any subcommittee thereof, may hold hearings, sit and act at 
such times and places within the State as the chairman shall designate, and require, 
by subpoena or otherwise, the attendance of such witnesses and the production of 
such books, papers and documents, as it deems necessary to effect the functions of 
the committee. 

1958 (50) 1933. 

§ 9-705. Issuance and service of subpoenas. 

Any subpoena shall be issued under the signature of the chairman of the committee 
and shall be served by any lawful peace officer designated by him. 
1958 (50) 1933. 

§ 9-706. Oaths. 

The committee may administer all necessary oaths and any person who, after 
being sworn before the committee or its members, shall swear falsely, shall be 
guilty of perjury, and, upon conviction, shall be punished therefor as provided by 
law. 

1958 (50) 1933. 

§ 9-707. Examination of witnesses ; testimony. 

Any person whom the committee may subpoena to appear in person shall be 
required to answer under oath all questions that the committee determines relevant 
and may propound to him. All testimony given before the committee shall be 
privileged, and no testimony given by any witness before the committee shall be 
used as evidence in any criminal proceeding against him in any court, except in a 
prosecution for perjury committed in giving such testimony, but an official paper 
or record produced by him is not within such privilege. No witness shall be 
privileged to refuse to testify to any fact or to produce any paper, or document, 
upon the ground that his testimony to such fact or production of such paper or 
document may tend to disgrace him or otherwise render him infamous. 

1958 (50) 1933. 

§ 9-708. Production and examination of records. 

The committee may require the production of any and all books, papers or other 
documents or writings which may be deemed relevant to an investigation, and may 
require the person in custody or possession of such papers to produce them before 
it. The committee may also designate its attorney or agent to examine such papers 
prior to their production before it in order that orderly hearings may be held. 

1958 (50) 1933. 

§ 9-709. Contempt proceedings for failure to obey summons or testify. 

Upon the failure or refusal of any person subpoenaed to appear in person, to obey 
such summons or notice, or to answer any and all questions that the committee 
determined relevant and propounded to him, he may be cited by the committee to 
the Attorney General who shall bring an appropriate action to have him adjudged 
in contempt of the committee. And upon conviction, he shall be punished with fine 
or imprisonment, or both, in the discretion of the court. 

1958 (50) 1933. 

176 



§ 9-710 1960 Cumulative Supplement § 10-16 

§ 9-710. Same ; failure to permit examination or produce record. 

Any person who fails or refuses to permit examinations of his books, papers or 
other documents or writings prior to their production before the committee or to 
act on the order or notice of the committee to produce same shall be deemed guilty 
of contempt of the committee and shall be punished therefor, upon conviction in a 
court of competent jurisdiction in an action brought in the name of the State by 
the Attorney General after citation of such person by the committee to the Attorney 
General. 

1958 (50) 1933. 

§ 9-711. Appropriations. 

Such funds as are necessary to defray the expenses of the committee shall be 
appropriated in the annual general appropriation act. 
1958 (50) 1933. 



Title 10. 
Civil Remedies and Procedure. 

Chap. 2. Limitation of Civil Actions, §§ 10-124 to 10-150. 

3. Parties, §§ 10-231 to 10-238. 

4. Venue, § 10-303.11. 

5. Summonses, Orders of Publication and Service of Papers Generally, 

§§ 10-424.3 to 10-455. 
7. Pleadings, § 10-610. 
10. Attachment, § 10-932.1. 

14. Trial and Certain Incidents thereof, § 10-1210. 

15. Legal Notices Generally, § 10-1307. 

16. Referees and Masters, § 10-1407. 

18. Judgments and Decrees Generally, §§ 10-1532 to 10-1564. 

19. Costs, § 10-1603. 

20. Executions and Judicial Sales Generally, §§ 10-1731 to 10-1766.1. 
31. Recovery of Real Property, §§ 10-2454 to 10-2457. 

33. Remedies of Minors, Incompetents and Females, §§ 10-2551 to 10-2587. 

CHAPTER 1. 
General Provisions. 
§ 10-2. How time computed. 

Computing running of statute of limita- puted by "excluding the first day and in- 

tions. — Under this section, construed in eluding the last", and the day of the ac- 

connection with the South Carolina stat- crual of the cause of action is excluded in 

ate of limitations, the time within which computing the statutory period. Macri v. 

an action must be brought will be com- Flaherty, 115 F. Supp. 739 (1953). 

§ 10-3. Definition of real property. 

Cited in McDonald v. Welborn, 220 S. 
C. 10, 66 S. E. 2d 327 (1951). 

§ 10-9. Definition of an action. 

Cited in Fordham v. Fordham, 223 S. C. 
401, 76 S. E. 2d 299 (1953). 

§ 10-16. Supreme Court justices to meet and make circuit court rules. 

Rules and regulations promulgated un- Regulations, Courts, Supreme and Circuit, 
der authority of this section, see Rules and in Volume 7. 

177 



§ 10-101 Code of Laws of South Carolina § 10-122 

CHAPTER 2. 

Limitation of Civil Actions. 

Article 2. Article 3. 

Actions £or Recovery of Real Property. Actions Other than for Recovery of 

Sec. Realty. 

10-124. Action for recovery of land; second Sec. 

action permitted. 10-145. Two years. 

10-125. [Repealed.] 10-150. Actions by State. 

Article 1. 
General Provisions. 
§ 10-101. When action deemed commenced. 

This section is integral part of South to perform a like service. Macri v. Fla- 

Carolina statute of limitations. Frith v. herty, 115 F. Supp. 739 (1953). 

Associated Press, 176 F. Supp. 671 (1959). The delivery on December 23, 1952, of 

An action is begun when process is the summons and complaint and five copies 

lodged with the sheriff for service, etc. thereof, to the federal marshal with the in- 

In accord with paragraph under this tent that they be actually served upon the 

catchline in Code. See Bell v. City of defendants and the subsequent service on 

Anderson, 226 S. C. 145, 84 S. E. 2d 343 the Chief Highway Commissioner on De- 

(1954). cember 30, 1952, was a compliance with 

Delivery to federal marshal is equivalent this section, and the action was com- 

to delivery to sheriff. Frith v. Associated menced on December 23, 1952. Macri v. 

Press, 176 F. Supp. 671 (1959). Flaherty, 115 F. Supp. 739 (1953). 

Delivery to federal marshal is equiva- Clerk of court not embraced in meaning 

lent to delivery to sheriff. — A federal mar- of "or other officer of the county," and de- 

shal is vested by federal statute with all livery to federal clerk of court not equiva- 

the powers which the sheriff has in the lent of delivery to marshal. Frith v. Asso- 

state in which his district lies. Thus the ciated Press, 176 F. Supp. 671 (1959). 

delivery of the summons and complaint Cited as to desertion in Holliday v. 

and five copies thereof to the marshal for Holliday, 235 S. C. 246, 111 S. E. 2d 205 

service upon the defendants was equiva- (1959). 
lent to a similar request upon the sheriff 

§ 10-102. General rule as to time for commencement. 

Time of accrual of action, etc. The day of the accrual of the cause of 

The Supreme Court of South Carolina action is excluded in computing the stat- 

has held that the statute of limitations utory period, under § 10-2, construed in 

begins to run when the cause of action ac- connection with the South Carolina stat- 

crues and whenever there is a plaintiff ute of limitations. Macri v. Flaherty, 115 

who can sue, and a defendant who can be F. Supp. 739 (1953). 
sued. Macri v. Flaherty, 115 F. Supp. 739 
(1953). 

§ 10-103. Exceptions; defendant ont of State. 

Persons included in section. this rule will be applied by a federal 

The South Carolina Supreme Court has court, although the plaintiff, under § 10- 

held that this section applies not only to a 431, could have had the summons and 

resident of this State who has gone abroad complaint served upon the Chief High- 

temporarily, and then returns, but also to way Commissioner. Macri v. Flaherty, 

one who has never been a resident, and 115 F. Supp. 739 (1953). 

§ 10-116. Clause in contract not in conformity to statute of limitations void. 

Cited in McCrary v. United States Fidel- 
ity, etc.. Co., 110 F. Supp. 545 (1953). 

Article 2. 
Actions jor Recovery of Real Property. 
§ 10-122. Action by grantee from State. 

Cited in Singleton v. Mullins Lumber 
Company, 234 S. C. 330, 108 S. E. 2d 414 
(1959). 

178 



§ 10-124 1960 Cumulative Supplement § 10-143 

§ 10-124. Action for recovery of land; second action permitted. 

No action for the recovery of real property or for the recovery of the possession 
thereof shall be maintained unless it appear that the plaintiff, his ancestor, pre- 
decessor or grantor, was seized or possessed of the premises in question within ten 
years before the commencement of such action. 

A second action for the recovery of real property shall be brought within two 
years from the rendition of the verdict or judgment in the first action or from 
the granting of a nonsuit or discontinuance therein. 

1942 Code § 374; 1932 Code § 374; Civ. P. '22 § 317; Civ. P. '12 § 123; Civ. P. '02 
§ 98; 1879 (22) 76; 1913 (27) 36; 1960 (51) 1737. 

Cross reference. — As to adverse posses- 
sion, see notes to § 10-2421. 

Effect of amendment. — The 1960 amend- tion of deeds on the ground of forgery, the 

ment added the second paragraph. action was not one for the recovery of 

Statute does not run against remainder- real property within the contemplation of 

man until death of life tenant. Crotweli v. this section, but was governed by subd 

Whitney, 229 S. C. 213, 92 S. E. 2d 473 (7), of § 10-143. McKinnon v. Summers, 

(1956). 224 S. C. 331, 79 S. E. 2d 146 (1953). 

Statute does not run against remainder- Mortgagee's possession as such not ad- 
man until death of life tenant. — In accord verse. — Where mortgagee entered into pos- 
with paragraph under this catchline in Code, session of property and continued such 
See Stamper v. Avant, 233 S. C. 359, 104 possession as such, his holding would not 
S. E. 2d 565 (1958). be adverse until he distinctly disavowed and 

Laches within period of statute of limi- repudiated his mortgagee relationship and 
tations is no defense at law. — In action by notice thereof was brought home to the 
holders of legal title to recover land to mortgagors, and neither this statute nor 
which defendants could base their claim any other statute of limitations would corn- 
only upon adverse possession, defendants mence to run under the circumstances of 
could not invoke equitable defense of this case until notice of adverse possession 
laches since rights of parties determinable was brought home to the mortgagors, 
under time limitations prescribed by this Knight v. Hilton, 224 S. C. 452, 79 S. E. 
section and § 10-2421, and laches within pe- 2d 871 (1954). 

riod of statue of limitations is no defense Applied in Lynch v. Lynch, S. C 

at law. Crotweli v. Whitney, 229 S. C. , 115 S. E. 2d 301 (1960) ; Home v. Cox, 

213. 92 S. E. 2d 473 (1956). S. C. , 115 S. E. 2d 513 (1960). 

Cancellation of deeds for forgery.— Cited in Singleton v. Mullins Lumber 

Where the gravamen of the cause of ac- Company, 234 S. C. 330, 108 S. E. 2d 414 

tion stated in the complaint was cancella- (1959). 

§ 10-125. Same; second action. 

Repealed by A. & J. R. 1960 (51) 1737. 
Cross reference. — See now § 10-124. 

§ 10-126. Action founded on title or for rents or services. 

Cited in Stamper v. Avant, 233 S. C. 
359, 104 S. E. 2d 565 (1958). 

§ 10-128. Persons under disability. 

Infancy of one cotenant delays running Adams, 220 S. C. 131, 66 S. E. 2d 809 
of statute against all. — See Adams v. (1951). 

§ 10-129. After forty years, no action whatever allowed. 

Cited in Outlaw v. Moise. 222 S. C. 24. Sinprleton v. Mullins Lumber Company, 234 
71 S. E. 2d 509 (1952); Stamper v. Avant, S. C. 330, 108 S. E. 2d 414 (1959). 
233 S. C. 359, 104 S. E. 2d 565 (1958); 

Article 3. 

Actions Other than for Recovery oj Realty. 

§ 10-143. Six years. 

I. GENERAL CONSIDERATION. reasonable time in order that evidence be 

The logic of statutes of limitations is reasonably available and that there be some 

that litigation must be brought within a end to litigation. Webb v. Greenwood 

179 



§ 10-143 



Code of Laws of South Carolina 



§ 10-143 



County, 229 S. C. 267, 92 S. E. 2d 688 
(19S6). 

The statute of limitations is a statute of 
repose, and affects the remedy and not the 
right. Webb v. Greenwood County, 229 
S. C. 267, 92 S. E. 2d 688 (1956). 

Statutes of limitations apply not only to 
suits against the State but also to suits 
brought by the State. Webb v. Greenwood 
County, 229 S. C. 267, 92 S. E. 2d 688 
(19S6). 

LaBt day for commencing action. — 
Where the personal injuries for which the 
plaintiff sought damages were received 
on December 23, 1946, the plaintiff had, as 
the last day, December 23, 1952, within 
which to commence her action. Macri v. 
Flaherty, 115 F. Supp. 739 (1953). 

This section not applicable to claims 
filed under authority of § 32-950.23. South 
Carolina Mental Health Comm. v. May, 
226 S. C. 108, 83 S. E. 2d 713 (1954); 
South Carolina Mental Health Comm. v. 
Smith, 226 S. C. 175, 84 S. E. 2d 375 (1954). 

Statutes of limitations do not apply to 
proceeding in mandamus, but where there 
is an unreasonable delay court in exercise 
of its discretion will refuse to issue writ. 
Godwin v. Carrigan, 227 S. C. 216, 87 
S. E. 2d 471 (1955). 

Applied in Royal-Liverpool Insurance 
Group v. McCarthy, 229 S. C. 72, 91 S. E. 
2d 881 (1956). 

Cited in Wallace v. Timmons, 232 S. C. 
311, 101 S. E. 2d 844 (1958). (Editor's note. 
— The opinion in this case was originally 
published in Westbrook Advance Sheets as 
Opinion No. 17339, filed Aug. 20, 1957. A 
rehearing was granted, and presumably the 
original opinion was withdrawn and the 
new opinion published in Westbrook Ad- 
vance Sheets as Opinion No. 17386, filed 
Feb. 6, 1958) ; Galphin v. Wells, S. C. 

, 115 S. E. 2d 288 (1960). 

II. SUBSECTION (1). 
B. Application of Section. 

This section applies to claims for serv- 
ices to a decedent which were rendered 
without agreement that payment should 
be made at death or by will, and in an ac- 
tion to recover on an implied promise to 
pay for such services, no recovery may be 
had for services performed more than six 
years prior to the death of decedent. Mc- 
Co'inell v. Crocker, 217 S. C. 334, 60 S. E. 
2d 673 (1950). 

IV. SUBSECTION (3). 

This section may bar recovery of com- 
pensation under Constitution. — While the 
right to compensation is constitutionally 
created, this section is a statute of repose, 
affects the remedy, not the right, and may 
operate to bar recovery by neighboring 
landowner who has suffered injury from 
maintenance of a dam. Hilton v. Duke 
Power Company, 254 F. 2d 118 (1958). 



This section applicable to landowner's 
common law action for compensation pro- 
vided by Constitution for permanent dam- 
ages to his property by reason of released 
impounded waters from county hydroelec- 
tric plant, such action being for conse- 
quential damages constituting one cause of 
action for a permanent taking of land with- 
out any element of improper or negligent 
operations or abatable nuisance. Webb v. 
Greenwood County, 229 S. C. 267, 92 S. E. 
2d 688 (1956). 

When statute begins to run against ac- 
tion for compensation under Constitution. 
— Cause of action for consequential dam- 
ages by reason of taking of land for pub- 
lic use arises when first injury occurs, and 
this section begins to run from time of first 
injury or damage. Webb v. Greenwood 
County, 229 S. C. 267, 92 S. E. 2d 688 
(1956). 

Where injuries suffered more than six 
years prior to commencement of landown- 
er's action for compensation for the taking 
of his land for public use, such "taking" 
resulting from released impounded water 
from county's hydroelectric plant flooding 
his land, such action was barred by the 
limitation of this section. Webb v. Green- 
wood County, 229 S. C. 267, 92 S. E. 2d 688 
(1956). 

When right of action for compensation 
under Constitution accrues. — S. C. rule is 
that there is a taking within meaning of 
Constitution and consequently an accrual 
of right of action when privately owned 
neighboring real estate actually invaded 
by superinduced additions of water, earth, 
sand or other material, but landowner ac- 
quires no rights against owner of dam and 
limitations do not begin to run until actual 
injury occurs. Hilton v. Duke Power Com- 
pany, 254 F. 2d 118 (1958). 

If actual injury amounting to a taking 
under Art. 1, § 17, of the Constitution 
occurs, suit must be brought within period 
of this section by property owner not only 
for actual injury which has occurred but 
also for any additional injuries which were 
foreseeable and estimable when taking oc- 
curred, and recovery may subsequently be 
had for additional injuries not foreseeable 
and estimable when taking occurred if suit 
is brought within period of this section 
after such injuries have been realized. Hil- 
ton v. Duke Power Company, 254 F. 2d 
118 (1958). 

Continuing cause of action. — If injury to 
neighboring lands by dam caused by negli- 
gence, or if cause is abatable, then there 
arises continuing cause of action, and while 
limitations begin to run at occurrence of 
first actual damage, landowner may at any 
time recover for injury to his land which 
occurred within period of this section. 
Hilton v. Duke Power Company, 254 F. 
2d 118 (1958). 



ISO 



10-145 



1960 Cumulative Supplement 



§ 10-150 



VII. SUBSECTION (7). 
A. General Consideration. 
When statute begins to run- 
in accord with 1st paragraph under this 
catchline in Code. See McKinnon v. Sum- 
mers, 224 S. C. 331, 79 S. E. 2d 146 (1953). 
B. Application of Subsection. 
Cancellation of forged deed. 
In accord with paragraph under this 
catchline in Code. See McKinnon v. 



Summers, 224 S. C, 331, 79 S. E. 2d 146 
(1953). 

Where the gravamen of the cause of ac- 
tion stated in the complaint was cancella- 
tion of deeds on the ground of forgery, 
such cause of action was barred by the 
six-year limitation in this section govern- 
ing actions for relief on the ground of 
fraud. McKinnon v. Summers, 224 S. C. 
331, 79 S. E. 2d 146 (1953). 



§ 10-145. Two years. 

Within two years: 

(1) An action for libel, slander, assault, battery or false imprisonment; 

(2) An action upon a statute for a forfeiture or penalty to the State; 

(3) An action at law by a motor carrier subject to chapter 13 of Title 58 for 
the recovery of its charges or any part thereof and such a cause of action shall 
for the purpose of this subdivision be deemed to accrue upon delivery or tender 
of delivery by the carrier; and 

(4) An action at law for the recovery of overcharges against a motor carrier 
subject to chapter 13 of Title 58 and such a cause of action shall for the purpose 
of this subdivision be deemed to accrue at the time the charges are paid to the 
motor carrier. If a claim for the over charge has been presented in writing to 
the carrier within the two year period of limitation, the period shall be extended 
to include six months from the time notice in writing was given by the carrier 
to the claimant of disallowance of the claim or any part or parts thereof. The 
term "overcharges" as used in this section shall be deemed to mean charges for 
transportation services in excess of those applicable thereto under the tariffs law- 
fully on file with the Public Service Commission. 

1942 Code § 390; 1932 Code § 390; Civ. P. '22 § 333; Civ. P. '12 § 139; Civ. P. '02 
8 114; 1870 (14) § 116; 1952 (47) 2170. 



Effect of amendment. — The amendment 
added subdivisions (3) and (4). 

Action for libel barred. — Where alleged 
libel occurred on Jan. 4, 1957, action could 
be commenced through Jan. 4, 1959, and 
that day being a Sunday, through Jan. 5, 
1959, and where complaint filed in office of 
clerk of court on Jan. 3, 1959, and mailed 
to marshal on Jan. 5, 1959, arriving Jan. 6, 

§ 10-146. One year. 

Cross reference.— As to time (one year) 
to bring action against railroad company 

§ 10-148. Action for other relief. 

Statutes of limitations do not apply to 
proceeding in mandamus, but where there 
is an unreasonable delay court in exer- 



1959, the earliest date that papers could be 
found in hands of marshal, delivery of 
papers to clerk was not equivalent of de- 
livery to marshal under § 10-101, and the 
action was barred by this section. Frith v. 
Associated Press, 176 F. Supp. 671 (1959). 
Applied in State v. National Postal 
Transport Association, 234 S. C. 260, 107 
S. E. 2d 763 (1959). 



for injury through violation of Commission 
rules, see § 58-1253.A. 



cise of its discretion will refuse to issue 
writ. Goodwin v. Carrigan, 227 S. C. 216, 
87 S. E. 2d 471 (1955). 



§ 10-150. Actions by State. 

The limitations prescribed by this article shall apply to actions brought in the 
name of the State or for its benefit in the same manner as to actions by private 
parties, except that limitations against claims for charges for care, training, main- 
tenance or treatment received by any patient or trainee from the State Hospital, 
any State training school or any State mental health facility shall commence to run 
against the State, its boards, commissions or agencies charged with the operation of 
the above institutions only from the last date upon which care, training, maintenance 
or treatment was furnished to any such patient or trainee. 

181 



§ 10-202 



Code ok Laws ok South Carolina 



§ 10-203 



1942 Code § 396; 1932 Code § 396; Civ. P. '22 § 339; Civ P. '12 9 145; Civ. P. '03 
8 119; 1870 (14) § 121; 1954 (48) 1732. 



Effect of amendment. — The amendment 
added the word "except" and all thereafter. 

Limitations in proper cases will run 
against the State, but such provisions must 



be strictly construed in favor of the State. 
South Carolina Mental Health Comm. v. 
May, 226 S. C. 10S, 83 S. E. 2d 713 (1954). 



Sec. 



Article 2. 
Guardians Ad Litem. 



CHAPTER 3. 
Parties. 

Sec. 

10-236. How guardian ad litem for men- 



10-231. Actions by and against infants and 
incompetents. 



tally incompetent person ap- 
pointed. 
10-238. Compensation of guardian ad litem 
of mentally incompetent or im- 
prisoned person. 



Article 1. 
General Provisions. 



§ 10-202. Who may be plaintiffs. 

Quoted in Singleton v. Singleton, 232 
S. C. 441, 102 S. E. 2d 747 (1958). 

§ 10-203. Who may be defendants. 

I. GENERAL CONSIDERATION. 

This section and § 10-219 must be con- 
strued together. Long Manufacturing Co. 
v. Manning Tractor Co., 229 S. C. 3Ul, 92 
S. E. 2d 700 (1956). 

All parties having an interest means any 
interest therein. — In accord with paragraph 
under this catchline in Code. See Long 
Manufacturing Co. v. Manning Tractor 
Co., 229 S. C. 301, 92 S. E. 2d 700 (1956). 

One may be made a party defendant to 
an action where he has an interest in the 
controversy adverse to claim which is 
foundation of plaintiff's action. Bank for 
Savings and Trusts v. Towe, 231 S. C. 
268, 98 S. E. 2d 539 (1957). 

Section liberally construed. 

In accord with 1st paragraph under this 
catchline in Code. See Bank for Savings 
and Trusts v. Towe, 231 S. C. 268, 98 
S. E. 2d 539 (1957). 

In accord with 2nd paragraph under 
this catchline in Code. See South Caro- 
lina Elec. & Gas Co. v. Aetna Ins. Co., 
114 F. Supp. 79 (1953). 

In accord with 3rd paragraph under this 
catchline in Code. See Long Manufacturing 
Co. v. Manning Tractor Co., 229 S. C. 
301, 92 S. E. 2d 700 (1956). 

This section has been liberally con- 
strued for purpose of bringing before court 
all parties who may be necessary to com- 
plete determination or settlement of all 
questions involved, and this is particularly 
true when action relates to foreclosure of 
real estate mortgage. Carolina Hous. & 
Mtg. Corp. v. O ranee Hill A. M. E. Ch., 
230 S. C. 498, 97 S. E. 2d 28 (1957). 

The word "controversy" is used in a 
very broa<* -meaning the entire mat- 



ter before the court. South Carolina Elec. 
& Gas Co. v. Aetna Ins. Co., 114 F. Supp. 
79 (1953). 

And bringing in new parties is discre- 
tionary with court. — In accord with para- 
graph under this catchline in Code. See 
Carolina Hous. & Mtg. Corp. v. Orange 
Hill A. M. E. Ch., 230 S. C. 498, 97 S. 
E. 2d 28 (1957); Singleton v. Singleton, 
232 S. C. 441, 102 S. E. 2d 747 (1958). 

Bringing in of additional parties has to 
be left very much to discretion of trial 
judge. — Long Manufacturing Co. v. Man- 
ning Tractor Co., 229 S. C. 301, 92 S. E. 
2d 700 (1956). 

Bringing in of new parties under this 
section is within discretion of circuit judge. 
Bank for Savings and Trusts v. Towe, 
231 S. C. 268, 98 S. E. 2d 539 (1957). 

When additional parties necessary.— 
Additional parties are not necessary to 
complete determination of the controversy 
unless they have rights which must be 
ascertained and settled before rights of 
parties to suit can be determined. Long 
Manufacturing Co. v. Manning Tractor 
Co.. 229 S. C. 301, 92 S. E. 2d 700 (1956). 

This section is permissive, with power to 
bring in a person or persons interested In 
the controversy subject to discretion of the 
court, and should be read in conjunction 
with section 10-219, both of which have 
been liberally construed for purpose of 
bringing before the court all parties who 
may be necessary to a complete determina- 
tion or settlement of all questions involved, 
but a party should not be brought in when 
doing so has effect of overriding repeatedly 
declared legal rights and revoking well- 
recognized procedure. Trawick v. One 1952 



182 



§ 10-204 



1960 Cumulative Supplement 



10-208 



International Pickup, etc., 225 S. C. 321, 82 
S. E. 2d 275 (1954). 

Which means "legal discretion". — In ac- 
cord with paragraph under tlm catchline 
in Code. See Carolina Hous. & Mtg. Corp. 
v. Orange Hill A. M. E. Ch., 230 S. C. 
498, 97 S. E. 2d 28 (1957) 

Applied in Shonnard v. South Carolina 
Public Service Authority, 217 S. C. 458, 
60 S. E. 2d 894 (1950). 

Cited in Crotts v. Fletcher Motor Co., 
219 S. C. 204, 64 S. E. 2d 540 (1951). 

II. APPLICATION OF SECTION. 

In action for foreclosure of mortgage, 
where genuineness of note and mortgage 
questioned, court properly joined as a par- 
ty defendant one who became liable on 
note and mortgage by assignment thereof, 
and this would be true even if the assign- 
ment was without recourse, for such as- 
signment, under provisions of § 8-896, does 
not relieve assignor from liability upon im- 



plied warranty as a vendor that instrument 
is genuine and that prior parties had ca- 
pacity to contract. Carolina Hous. & Mtg. 
Corp. v. Orange Hill A. M. E. Ch., 230 
S. C. 498, 97 S. E. 2d 28 (1957). 

Plaintiff cannot be compelled to convert 
action in rem to one in personam. — Where 
plaintiff proceeded in rem in attachment 
against truck and owner of truck was per- 
mitted by circuit court to intervene and 
plaintiff required to amend complaint, court 
was correct in permitting owner to inter- 
vene but in error in requiring amendment 
of complaint, owner having interest in 
controversy adverse to plaintiff and privi- 
lege to set up rights to attached truck, but 
plaintiff had legal right to proceed in rem 
only and cannot be compelled to allege 
cause of action in personam. Trawick v. 
One 1952 International Pickup, etc., 225 
S. C. 321, 82 S. E. 2d 275 (1954). 



§ 10-204. When parties united In interest. 

Quoted in Carolina Hous. & Mtg. Corp. Applied in Singleton v. Singleton, 232 

v. Orange Hill A. M. E. Ch., 230 S. C. S. C. 441, 102 S. E. 2d 747 (1958). 
498, 97 S. E. 2d 28 (1957). Cited in Crotts v. Fletcher Motor Co., 

219 S. C. 204, 64 S. E. 2d 540 (1951). 

§ 10-205. One or more may sne or defend for all. 



I. GENERAL CONSIDERATION. 
Cited in Crotts v. Fletcher Motor Co., 

219 S. C. 204, 64 S. E. 2d 540 (1951). 

II. APPLICATION OF SECTION. 
Members of congregation of Church. — 

A few members of church had right to 
sue for themselves and other members of 
church to protect their rights in the church 
and in its property. Bramlett v. Young, 
229 S. C. 519, 93 S. E. 2d 873 (1956). 

Representatives of the class of nearest 
relatives. — Where all of testator's nieces 



and nephews, all of the first cousins, all of 
the brothers and sisters and cousins once 
removed were made defendants individaully 
and as representing the class of testator's 
"nearest relatives", this group constituted 
a true representation, and all rights of the 
class of "nearest relatives" were properly 
adjudicated and all necessary parties were 
properly before the court. Caine v. Griffin, 
232 S. C. 562, 103 S. E. 2d 37 (1958). 

Applied in Stanton v. Gulf Oil Corpora- 
tion, 232 S. C. 148, 101 S. E. 2d 250 (1957). 



§ 10-208. One action against different parties to bills, notes, etc. 

Section tends to prevent multiplicity of & Mtg. Corp. v. Orange Hill A. M. E. 
suits.— In accord with paragraph under Ch., 230 S. C. 498, 97 S. E. 2d 28 (1957). 
this catchline in Code. See Carolina Hous. 

§ 10-207. Party in interest to sne ; action by grantee of land held adversely. 



I. GENERAL CONSIDERATION. 

Ordinarily, a plaintiff must be a real 
party in interest. Johnson v. Abney Mills, 
219 S. C. 231, 64 S. E. 2d 641 (1951). 

Action by guardian of an infant for 
personal injuries must be brought in name 
of the infant by his guardian. Blactwell v. 
Vance Trucking Company, 139 F. Supp. 
103 (1956). 



Action for tort causing personal injuries 
not assignable, and § 10-209 has no effect 
on provision of this section limiting as- 
signments to a thing in action arising out 
of contract. Lisenby v. Patz, 130 F. Supp. 
670 (1955). 

Applied in Jeff Hunt Machinery Co. v. 
South Carolina State Highway Dept., 217 
S. C. 423, 60 S. E. 2d 859 (1950) ; Wise v. 
Picow, 232 S. C. 237, 101 S. E. 2d 651 
(1958). 



§ 10-208. Actions by executor, trustee, etc. 

Stated in Lisenby v. Patz, 130 F. Supp. Quoted in Blaclcwell v. Vance Trucking 

670 (1955). Company, 139 F. Supp. 103 (1956). 



183 



§ 10-209 



Code ok Laws of South Carolina 



§ 10-219 



§ 10-209. Survival of right of action. 

The measure of damages under this sec- 
tion is for conscious pain and suffering. 
Folk v. United States, 102 F. Supp. 736 
(1952). 

Administrator may maintain action for 
prenatal injuries to a viable child born 
alive. — A foetus having reached period of 
prenatal maturity where it is capable of 
independent life apart from its mother is 
a person, and if such child is injured it 
may after birth maintain an action for 
such injuries, and administrator may main- 
tain action to recover damages for alleged 
pain and agony. Hall v. Murphy, 236 S. C. 
257, 113 S. E. 2d 790 (1960). 

Non-assignable. — This section was en- 
acted solely for purpose of protecting sur- 
vivorship rights and not for carrying with 
it the usual rights of assignability which 



customarily flow from survival statutes, 
and does not confer right to assign per- 
sonal injury case. Lisenby v. Patz, 130 F. 
Supp. 670 (1955). 

Right of action for personal injuries is 
assignable under law of South Carolina, 
this section having incidental effect of 
making such cause of action assignable. 
Hair v. Savannah Steel Drum Corporation, 
161 F. Supp. 654 (1955). 

Stated in Dubuque Fire & Marine Ins. 
Co. v. Wilson, 213 F. 2d 115 (1954). 

Applied in United States v. Folk, 199 
F. (2d) 889 (1952). 

Cited in American Casualty Co. v. 
Howard, 187 F. 2d 322 (1951); Brewer v. 
Gravdon, 233 S. C. 124, 103 S. E. 2d 767 
(1958). 



§ 10-212. Local representative of deceased nonresident tort-feasor by op- 
eration of motor vehicle. 



This section supplements § 46-104. — 
Enactment of this section is evidence that 
§ 46-104 did not intend that Chief High- 
way Commissioner was to be agent of de- 
ceased nonresident motorist's administra- 



tor or personal representative upon whom 
process could be served. Gregorv v. White, 
151 F. Supp. 761 (1957). 

Cited in Norwood v. Parthemos, 230 
S. C. 207, 95 S. E. 2d 168 (1956). 



§ 10-214. Foreign corporations as defendants. 



pleas court, and court properly refused to 
dismiss action under doctrine of forum non 
conveniens. Chapman v. Southern Railway 
Company, 230 S. C. 210, 95 S. E. 2d 170 
(1956). 

Cited in dissenting opinion Stukes, A. J., 
in Foster v. Morrison, 226 S. C. 149, 84 
S. E. 2d 344 (1954). 



Doctrine of forum non conveniens, even 
if adopted, should not be applied when 
plaintiff is resident of this State. — Action 
by resident administrator under Federal 
Employer's Liability Act against foreign 
railway company doing business in this 
State for damages for death of railway em- 
ployee in Georgia caused by negligence of 
railway was within jurisdiction of common 

§ 10-215. By what name unincorporated associations sued. 

Members of unincorporated association when tortious act is committed in further- 
are jointly and severally liable for obliga- ance of purpose of union, union is liable 
tions of the association. Hall v. Walters, for all acts done pursuant to such con- 
226 S. C. 430, 85 S. E. 2d 729 (1955). spiracy to which through its officers it is 

A labor union is an unincorporated as- a party. Hall v. Walters, 226 S. C. 430, 85 

sociation and its liability to suit and proc- S. E. 2d 729 (1955). 



ess is fixed by this section and § 10-429. 
Hall v. Walters, 226 S. C. 430, 85 S. E. 
2d 729 (1955). 

A labor union may be sued for dam- 
ages for tort and conspiracy. Hall v. Wal- 
ters, 226 S. C. 430, 85 S. E. 2d 729 (1955). 

Labor union may be co-conspirator. — 
Assuming that labor union is not a legal 
entity, officers and members of union are 
capable of entering into a conspiracy and 

§ 10-219. New parties; interpleader. 
Cross reference. — As to authority for 
master to make new parties, see § 15-1815 
(3). 

I. NEW PARTIES. 
A. General Consideration. 
This section and § 10-203 must be con- 
strued together. — Long Manufacturing Co. 



Joinder of unincorporated union and its, 
or some of its, members as defendants in 
action based upon conspiracy is proper. 
Hall v. Walters, 226 S. C. 430, 85 S. E. 
2d 729 (1955). 

Army officers' mess immune from suit 
under federal law by which the State and 
its courts are bound. Brame v. Garner, 
232 S. C. 157, 101 S. E. 2d 292 (1957). 



v. Manning Tractor Co., 229 S. C. 301. 92 
S. E. 2d 700 (1956). 

This section has been liberally con- 
strued. — Generally, the practice statutes are 
liberally construed to authorize courts to 
bring before them all persons necessary 
to a complete determination of the mat- 



IK4 



§ 10-231 



1960 Cumulative Supplement 



§ 10-231 



ters involved and to the granting of ap- 
propriate relief to the end that substantial 
justice may be done. Brown v. Quinn, 
220 S. C. 426, 68 S. E. 2d 326 (1951). 

This section has been liberally construed, 
etc. — In accord with paragraph under this 
catchline in Code. See Trawick v. One 19S2 
International Pickup, etc., 225 S. C. 321, 
82 S. E. 2d 275 (1954). 

When additional parties necessary. — 
Additional parties are not necessary to 
complete determination of the controversy 
unless they have rights which must be as- 
certained and settled before rights of par- 
ties to suit can be determined. Long Man- 
ufacturing Co. v. Manning Tractor Co., 
229 S. C. 301, 92 S. E. 2d 700 (1956). 

This bringing in of new parties is dis- 
cretionary with the court. 

In accord with this catchline in Code. 
See Ellen v. King, 227 S. C. 481, 88 S. E. 
2d 598 (1955); Carolina Hous. & Mtg. 
Corp. v. Orange Hill A. M. E. Ch., 230 
S. C. 498, 97 S. E. 2d 28 (1957); Singleton 
v. Singleton, 232 S. C. 441, 102 S. E. 2d 
747 (1958). 

Bringing in of additional parties has to 
be left very much to discretion of trial 
judge. Long Manufacturing Co. v. Man- 
ning Tractor Co., 229 S. C. 301, 92 S. E. 
2d 700 (1956). 

Which means "legal discretion". — In ac- 
cord with paragraph under this catchline 
in Code. See Carolina Hous. & Mtg. Corp. 
v. Orange Hill A. M. E. Ch., 230 S. C. 
498. 97 S. E. 2d 28 (1957). 

Cited in Taylor v. Cecil's Incorporated, 
229 S. C. 182, 92 S. E. 2d 268 (1956). 
B. Application of Section. 

Additional parties brought in for pur- 
poses of defendant's counterclaim and 
cross action. — In an action arising out of 
a collision between plaintiff's automobile, 
which was being operated by him as a 
taxicab, and defendant's automobile, the 
lower court properly passed an order mak- 
ling plaintiff's liability insurance carrier and 
iplaintiff's taxicab parties defendant, so 
(that the defendant could file a counter- 
jclaim and cross complaint or cross action 
iagainst the added defendants. Brown v. 
JQuinn, 220 S. C. 426, 68 S. E. (2d) 326 
'(1951). 

In an action against a governmental 
jagency to recover just compensation for 



the alleged "taking" of property damaged 
by the diversion of water from a river, 
reason enough existed for the impleading 
of subsequent grantees of the property in 
the consideration that otherwise they 
might thereafter sue the agency for the 
same "taking" of the property which, ac- 
cording to the allegations of the com- 
plaint, arose from continuing injuries to 
it. Shonnard v. South Carolina Public 
Service Authority, 217 S. C. 458, 60 S. 
E. 2d S94 (1950). 

In action for foreclosure of mortgage, 
where genuineness of note and mortgage 
questioned, court properly joined as a 
party defendant one who became liable on 
note and mortgage by assignment thereof, 
and this would be true even if the assign- 
ment was without recourse, for such as- 
signment, under provisions of § 8-896, does 
not relieve assignor from liability upon im- 
plied warranty as a vendor that instrument 
is genuine and that prior parties had ca- 
pacity to contract. Carolina Hous. & Mtg. 
Corp", v. Orange Hill A. M. E. Ch., 230 
S. C. 498, 97 S. E. 2d 28 (1957). 

Action by one heir at law against ad- 
ministrator for accounting. — In action by 
an heir at law against administrator for an 
accounting trial court properly exercised 
his discretion in joining all heirs at law as 
parties, at least six of whom had an interest 
in subject of action. Singleton v. Singleton, 
232 S. C. 441, 102 S. E. 2d 747 (1958). 

Plaintiff cannot be compelled to convert 
action in rem to one in personam. — Where 
plaintiff proceeded in rem in attachment 
against truck and owner of truck was per- 
mitted by circuit court to intervene and 
plaintiff required to amend complaint, court 
was correct in permitting owner to inter- 
vene but in error in requiring amendment 
of complaint, owner having interest in con- 
troversy adverse to plaintiff and privilege to 
set up rights to attached truck, but plain- 
tiff had legal right to proceed in rem only 
and cannot be compelled to allege cause of 
action in personam. Trawick v. One 1952 
International Pickup, etc., 225 S. C. 321, 82 
S. E. 2d 275 (19<;4V 

II. INTERPLEADER. 

Applied in Jefferson Standard Insurance 
Company v. Smith, 161 F. Supp. 679 (1956). 



Article 2. 
Guardians Ad Litem. 
§ 10-231. Actions by and against infants and incompetents. 

When an infant or mentally incompetent person, whether hospitalized or not, 
is a party he must appear by guardian ad litem who, in the case of an infant, 
i|may be appointed by the court in which the action is prosecuted, a judge of pro- 
bate, a clerk of court or a master in those counties in which the office of master 
exists. When an infant or mentally incompetent person is a party in a proceeding 
before the Industrial Commission a guardian ad litem for such infant or mentally 

185 



§ 10-232 Codb of Laws of South Carolina § 10-236 

incompetent person may be appointed by a judge of probate, clerk of court or 
master, if there be a master, of the county wherein sucli infant or mentally in- 
competent person resides or by any circuit judge in this State. 

1942 Code § 401; 1932 Code § 401; Civ. P. '22 § 358; Civ. P. '12 § 164; Civ. P. '02 
§ 136; 1870 (14) § 138; 1879 (17) 32; 1898 (22) 688; 1946 (44) 1517; 1952 (47) 2042. 

Effect of amendment. — A. & J. R. 1952 visions of the first sentence relating to ap- 
(47) 2042 did not expressly amend this sec- pointment of guardians ad litem. See § 10- 
tion. But it did expressly amend §§ 10- 236, as amended, for the appointment of 
236 and 10-238 and it is believed that in so guardians ad litem for mentally incompe- 
doing it, in effect, amended § 10-231 to tent persons. 

make it read as above. The changes are in Action must be brought in name of 

the substitution of the phrase "mentally infant. — In accord with paragraph under 
incompetent person" for the old phrase this catchline in Code. See Blackwell v. 
"incompetent or insane person" and in the Vance Trucking Company, 139 F. Supp. 
elimination of such persons from the pro- 103 (1956). 

§ 10-232. Guardian ad litem for person imprisoned. 

Defendant waived right to such appoint- section filed an answer and counterclaim 

ment where he had ample opportunity to and raised no question about a g.a.l. until 

apply for appointment of g.a.l. and instead eve of trial. C/reen v. Boney, 233 S. C. 49, 

his counsel with full knowledge of this 103 S. R. 2d 732 (1958). 

§ 10-236. How guardian ad litem for mentally incompetent person appointed. 

When a mentally incompetent person is a plaintiff his guardian ad litem shall 
be appointed upon application made by his committee or by a relative or friend 
and, if by a relative or friend, notice thereof must first be given to his committee 
or, if he has no committee, to the person with whom he resides. When the incompe- 
tent person is a defendant his guardian ad litem shall be appointed upon applica- 
tion made by his committee, if he has a committee and if the committee applies 
within twenty days after the service of summons, or, if his committee neglects 
or fails to apply within that time or if he has no committee, by a relative or friend 
or any other party to the action. If application is made by a relative or friend or 
other party to the action, notice thereof must first be given to the committee or if 
there is no committee, to the person with whom lite incompetent person resides. 
The application shall be made to, and the appointment shall be made by, (1) the 
court in which the action is prosecuted, (2) a judge, the clerk or the master thereof 
or (3) by the probate judge of the court of probate of the county in which the 
incompetent person resides or for the county in which the action is prosecuted. An 
attorney or other competent person shall be appointed to act as guardian ad litem 
for the incompetent person. If the incompetent person resides out of the State or 
is temporarily absent therefrom, a guardian ad litem may be appointed by an order 
nisi, in accordance with the practice relating to infants as set forth in § 10-235. 
All such appointments heretofore made are hereby validated and confirmed. 

1942 Code § 409-1; 1937 (40) 47; 1940 (41) 1828; 1952 (47) 2042. 

Effect of amendment. — The amendment Burden of proof. — Burden of proving 

merely changed the references from "in- mental incompetency is upon petitioner 
sane person" to "mentally incompetent who seeks to establish it. Thompson v. 
person." Moore, 227 S. C. 417, 88 S. E. 2d 354 

Meaning of "mentally incompetent." — (1955). 
While mental incompetency is difficult of Where there has been no previous ad- 

exact definition, its ordinary meaning im- judication of mental incompetency, it must 
ports mental deficiency so great as to ren- be made to appear to the court or officer 
der one unable to comprehend or transact making appointment by proof reasonably 
the ordinary affairs of life and incapable of sufficient to establish the fact, either by af- 
managing his own affairs, whether from fidavit or otherwise, and the court or such 
age, disease or affliction, but it is not nee- officer should be satisfied from the proofs 
essary to prove that he is a lunatic or that status of incompetency actually exists, 
has been previously adjudged insane. and make a finding of such incompetency. 
Thompson v. Moore, 227 S. C. 417, 88 Thompson v. Moore, 227 S. C. 417, 88 
S. E. 2d 354 (1955). S. E. 2d 354 (1955). 

186 



§ 10-237 



1960 Cumulative Supplement 



§ 10-301 



This section does not provide for nor 
contemplate jury trial on question of men- 
tal competency upon application for ap- 
pointment of guardian ad litem for alleged- 
ly mental incompetent. Thompson v. 
Moore, 227 S. C. 417, 88 S. E. 2d 354 
(19SS). 

Proof insufficient. — That petitioner's 
father is an elderly man some 79 years of 
age and because of his age he is incom- 
petent and not capable mentally to pros- 
ecute the action in his own name or de- 



fend it, is clearly insufficient ground upon 
which to base a finding of mental incom- 
petency. Thompson v. Moore, 227 S. C. 
417, 88 S. E. 2d 354 (1955). 

Conclusiveness of finding. — Conclusion 
of circuit judge that showing of incompe- 
tency was insufficient constitutes finding of 
fact, which is binding upon Supreme Court 
unless unsupported by evidence. Thomp- 
son v. Moore, 227 S. C. 417, 88 S. E. 2d 
354 (1955). 



§ 10-237. How guardian ad litem for imprisoned person appointed. 

Defendant waived right to such appoint- section filed an answer and counterclaim 

ment where he had ample opportunity to and raised no question about a g.a.l. until 

apply for appointment of g.a.l. and instead eve of trial. Green v. Boney, 233 S. C. 49, 

his counsel with full knowledge of this 103 S. E. 2d 732 (1958). 

§ 10-238. Compensation of guardian ad litem of mentally incompetent or im- 
prisoned person. 

The guardian ad litem of a mentally incompetent or imprisoned person ap- 
pointed under the provisions of § 10-236 or § 10-237 shall receive out of the prop- 
erty of such mentally incompetent or imprisoned person a reasonable compensation 
for the service rendered in such person's behalf. 

1942 Code §§ 409-1, 409-2; 1937 (40) 47; 1940 (41) 1828, 1833; 1952 (47) 2042. 

Effect of amendment. — The amendment 
merely changed "insane person" to "men- 
tally incompetent person." 

CHAPTER 4. 
Venue. 

Sec. 

10-303.11. Actions against State agencies 
and State officials; exceptions. 

§ 10-301. Actions to be tried where 

Cross reference. — § 3-187.73 requires 
sellers of economic poisons to agree to 
jurisdiction in any county in which their 
economic poisons or insecticides are used. 

Damage to peach trees with consequent 
loss of crops is injury to real property. 
Big Robin Farms v. California Sprav- 
Chemical Corp., 161 F. Supp. 646 (1958"). 

Venue under state law controls venue 
in federal diversity case. — Where by state 
practice action must be brought in county 
of situs of land, in federal courts in a 
diversity case action must be brought in 
district and division of situs. Big Robin 
Farms v. California Spray-Chemical Corp., 
161 F. Supp. 646 (1958). 

The words "must be tried" are impera- 
tive and cannot be disregarded, but the 
action must belong to one of the classes 
set forth in this section. W. C. Caye & 
Comnanv v. Saul, 229 S. C. 306, 92 S. E. 
2d 696 (1956). 

Defendant's residence proper venue for 
chattel mortgage foreclosure when plaintiff 
has possession. — Action for foreclosure of 



subject matter situated. 

chattel mortgage should be tried in county 
of residence of defendant when personal 
property covered by mortgage is in posses- 
sion of plaintiff W. C. Caye & Company 
v. Saul, 229 S. C. 306, 92 S. E. 2d 696 
(1956). 

County in which personal property, or 
some part of it, is situate is proper venue 
in claim and delivery action. W. C. Caye 
& Company v. Saul, 229 S. C. 306, 92 S. 
E. 2d 696 (1956). 

But, where no proof offered as to loca- 
tion of property either at time of com- 
mencement of action or at time when 
motion for change of venue argued, motion 
properly denied where one of defendants 
was resident of county in which action 
brought. Branham v. Boney Diesel Works 
Co.. 233 S. C. 226, 104 S. E. 2d 290 (1958). 

Stated in Thomas & Howard Co. of 
Conway v. Marion Lumber Co., 232 S. C. 
304. 101 S. E. 2d 848 (1958). 

Cited in Melton v. Melton, 227 S. C. 
183, 87 S. E. 2d 485 (1955); Taylor v. Wall, 
231 S. C. 683, 100 S. E. 2d 400(1957). 



1S7 



Volume 1 



§ 10-302 



Code of Laws of South Carolina 



§ 10-303 



§ 10-S02. Actions to be tried where cause of action arose. 



I. GENERAL CONSIDERATION. 

Stated in Thomas & Howard Co. of 
Conway v. Marion Lumber Co., 232 S. C. 
304, 101 S. E. 2d 848 (1958). 

Cited in Melton v. Melton, 227 S. C. 
183, 87 S. E. 2d 485 (1955). 

II. SUBSECTION (2). 

Suits against the State Board of Fish- 
eries to require reinstatement of plaintiffs 
as county inspectors for the Board, and to 



require payment of their salaries, must be 
tried in the counties in which the causes 
of action arose. The court of common 
pleas for Jasper County had no jurisdic- 
tion of such suits brought by inspectors 
of other counties, and the failure of the 
defendants to move for change of venue 
was immaterial. Langford v. State Board 
of Fisheries, 217 S. C. 118. 60 S. E. 2d 59 
(1950). 



§ 10-303. Actions to be tried in county where defendant resides. 



Cross references. — As to actions against 
certain State agencies and State officials, 
see § 10-303.11. 

As to actions against motor carriers, see 
§ 58-1470. 

As to action against domestic corpora- 
tion, see § 10-421. 

I. GENERAL CONSIDERATION. 

General Assembly may make provisions 
for venue. — It is within power of General 
Assembly to make such provisions for 
venue as it may deem proper so long as 
they do not, by arbitrary and unreasonable 
discrimination against particular persons, 
violate fundamental guaranties of due proc- 
ess and equal protection. Deese v. Williams, 
236 S. C. 292, 113 S. E. 2d 823 (1960). 

Language of section is mandatory and 
right given to defendant is valuable and 
substantial one, but it is within power of 
General Assembly, subject to constitutional 
limitations, to restrict or even abolish that 
right. Deese v. Williams, 236 S. C. 292, 
113 S. E. 2d 823 (1960). 

The right of defendant in civil action to 
trial in county of his residence is a sub- 
stantial right. Perdue v. Southern Railway 
Company, 232 S. C. 78, 101 S. E. 2d 47 
(1957); Lee v. Neal, 233 S. C. 206, 104 
S. E. 2d 291 (1958); Thomas & Howard Co. 
of Conway v. Marion Lumber Co., 232 S. C. 
304, 101 S. E. 2d 848 (1958); Graham v. 
Beverly, 235 S. C. 222, 110 S. E. 2d 923 
(1959); Sanders v. Allis Chalmers Manu- 
facturing Company, 235 S. C. 259, 111 S. E. 
2d 201 (1959). 

The right of a defendant to have a case 
against him tried in the county in which 
he resides, etc. 

In accord with 1st paragraph under this 
catchline in Code. See Moody v. Burns, 
222 S. C. 258, 72 S. E. 2d 189 (1952); 
Warren v. Padgett. 225 S. C. 447, 82 S. 
E. 2d 810 (1954). 

In accord with 3rd paragraph under this 
catchline in Code. See Wood v. Lea, 219 
S. C. 409, 65 S. E. 2d 669 (1951). 

The right of a resident defendant to a 
trial in the county of his residence has 
been aptly described as a substantial and 
valuable right, and subject to defeat only 
when the requirements of the statute per- 
mitting such change have met with com- 



pliance. Wingard v. Sims, 222 S. C. 396, 
73 S. E. 2d 279 (1952). 

The right of a resident to be sued in 
his own county has long been held to 
be a valuable one. Fordham v. Fordham, 
223 S. C. 401, 76 S. E. 2d 299 (1953). 

The right of a defendant to trial in 
county of his residence is a valuable right 
• n<l not to be lightly denied. Royal Crown 
Bottling Company v. Chandler, 228 S. C. 
412, 90 S. E. 2d 489 (1955). 

The right of a defendant in a civil ac- 
tion to trial in county of his residence, as- 
sured him under this section, is a substan- 
tial right, and Supreme Court has repeat- 
edly held that a jury of the vicinage pass- 
ing upon credibility of the witnesses is in 
itself promotion of justice. Holden v. 
Beach, 228 S. C. 234, 89 S. E. 2d 433 
(1955); McCaulev v. McLeod, 230 S. C. 
380, 95 S. E. 2d 611 (1956); Doss v. Doug- 
lass Construction Company, 232 S. C. 261 
101 S. E. 2d 661 (1958); Garrett v. Charles- 
ton & Western Carolina Ry. Co., 236 S. C. 
75, 113 S. E. 2d 256 (1960). 

While right of defendant in civil action 
to trial in county of his residence, assured 
him under this section, is a substantial 
right, a jury of the vicinage passing upon 
credibility of the witnesses is in itself a 
promotion of justice. Dison v. Wimbly, 
230 S. C. 187, 94 S. E. 2d 877 (1956). 

Defendant did not waive and was not 
estopped to assert his right to move for 
change of place of trial to county of his 
residence, after he became only real de- 
fendant, by originally moving, before elimi- 
nation of other defendants, for change of 
venue to his county and on grounds of 
Subdivision (3) of § 10-310, and by motion 
ior a hearing in original county after re- 
mand of cases to trial court, where there 
was no showing of prejudice to, or change 
of position by, plaintiffs by delay in mak- 
ing motion. Royal Crown Bottling Com- 
pany v. Chandler, 228 S. C. 412, 90 S. E. 
2d 489 (1955). 

Time within which motion to transfer 
should be made. — Under this catchline in 
Code, add 2nd paragraph: 

There is no time prescribed in our stat- 
utes or rules for the making of a motion 
to change the place of trial. Royal Crown 



188 



§ 10-303 



1960 Cumulative Supplement 



§ 10-303 



Bottling Company v. Chandler, 228 S. C. 
412, 90 S. E. 2d 489 (1955). 

Answering generally before moving to 
change venue does not waive defendant's 
right to move to transfer case to county 
of his residence. Lee v. Neal, 233 S. C. 2U6, 
104 S. E. 2d 291 (1958). 

Issue of residence is factual one and its 
determination by trial court is conclusive 
unless without evidentiary support. Ernan- 
dez v. Miller, 232 S. C. 634, 103 S. E. 2d 
263 (1958). 

When change of venue is question of 
law. — Where motion is made for change 
of venue on ground that named county is 
residence of defendant and fact of de- 
fendant's residence in that county is not 
disputed, question of law is presented and 
decision in matter not addressed to discre- 
tion of trial judge. Sanders v. Allis Chal- 
mers Manufacturing Company, 235 S. C. 
259, 111 S. E. 2d 201 (1959). 

Immaterial defendant cannot be used to 
deprive co-defendant of right of trial in 
county of his residence. Seegars v. WIS-TV 
(Broadcasting Co. of the South), 236 S. C. 
355. 114 S. E. 2d 502 (1960). 

Co-defendant must be a material and 
bona fide defendant. 

In accord with 1st paragraph under this 
catchline in Code. See Wood v. Lea, 219 
S. C. 409. 65 S. E. 2d 669 (1951). 

In accord with 2nd paragraph under this 
catchline in Code. See Moody v. Burns, 
222 S. C. 258, 72 S. E. (2d) 189 (1952); 
Warren v. Padgett, 225 S. C. 447, 82 S. E. 
2d 810 (1954). 

The driver of the third car involved in 
an automobile collision was not a material 
defendant in an action for wrongful death 
arising out of the collision where the evi- 
dence showed that any negligence of the 
driver of the third car was not the prox- 
imate cause of the collision. Moody v. 
Burns, 222 S. C. 258, 72 S. E. 2d 189 
(1952). 

In action brought against a manufacturer 
and a retailer of a soft drink residing in 
different counties, in passing upon motion 
of manufacturer for change of venue on 
ground that retailer was not a material and 
bona fide defendant, lower court sits as 
judge and jury and may go beyond the 
pleadings to determine the issue. A de- 
fendant may be mala fide, so as to require 
the granting of the motion even though 
the allegations (and proof apparently avail- 
able) may be sufficient to submit the case 
to the jury; and so whether or not a cause 
of action is stated in the complaint is not 
always controlling. Peters v. Double Cola 
Bottling Co. of Columbia, 224 S. C. 437, 
79 S. E. 2d 710 (1954). 

In action brought against a manufacturer 
and a retailer of a soft drink residing in 
different counties, on motion of manufac- 
turer for change of venue, showing sup- 
ported finding of lower court, sitting as 



judge of the law and of the facts, that de- 
fendant retailer was a bona fide defendant 
against whom a cause of action was stated. 
Peters v. Double Cola Bottling Co. of 
Columbia, 224 S. C. 437, 79 S. E. 2d 710 
(1954). 

Defendant not entitled to change of 
place of trial to county of his residence 
where co-defendant was liability insurer of 
state-owned school bus against which a 
cause of action was stated in complaint in 
action brought in county in which collision 
occurred. Thomas v. Nationwide Mutual 
Automobile Ins. Co. 232 S. C. 358, 102 
S. E. 266 (1958). 

In action for wrongful death brought 
against nonresident railroad and resident 
driver of automobile in which complaint 
stated a cause of action against both de- 
fendants, and answer of railroad alleged 
that death was caused by sole negligence, 
willfulness, and wantonness of resident de- 
fendant, hearing judge who sat as both 
judge and jury, did not abuse his discre- 
tion in finding and holding that resident 
defendant was bona fide defendant, and 
refusing motion for change of venue. Per- 
due v. Southern Railway Company, 232 
S. C. 78, 101 S. E. 2d 47 (1957). 

Findings by hearing judge on motion to 
change venue will not be disturbed by Su- 
preme Court unless they appear manifestly 
wrong. Warren v. Padgett, 225 S. C. 447, 
82 S. E. 2d 810 (1954). 

Court's finding that one of defendants 
was not joined solely for purpose of laying 
venue, binding on appeal, and will not be 
disturbed unless wholly unsupported by 
evidence or manifestly influenced or con- 
trolled by error of law. Simmons v. Cohen, 
227 S. C. 606, 88 S. E. 2d 679 (1955). 

Ability or inability of defendant to re- 
spond to monetary judgment has no bearing 
upon venue of a case except that it may be 
considered by hearing judge in determining 
question of whether or not such defendant 
is a bona fide or mala fide defendant. War- 
ren v. Padgett, 225 S. C. 447, 82 S. E. 2d 
810 (1954); Doss v. Douglass Construction 
Company, 232 S. C. 261, 101 S. E. 2d 661 
(1958). 

In action under Pure Food law preferable 
to join both manufacturer and retailer. — 
Where two defendants who reside in dif- 
ferent counties are sued jointly, the statute 
provides that the case may be tried in 
either of the two counties. Where an action 
involves both the manufacturer and the re- 
tailer under the Pure Food and Drug Laws, 
(Sec. 32-1451 et seq.), it is not only proper 
but preferable to join both defendants in 
the same complaint in order to prevent a 
multiplicity of actions. Peters v. Double 
Cola Bottling Co. of Columbia, 224 S. C. 
437. 79 S. E. 2d 710 (1954). 

This section applies alike to actions and 
special proceedings, in the absence of spe- 
cific provision for a special proceeding, 



189 



§ 10-303 



Code of Laws of South Carolina 



§ 10-303 



6uch as is applicable to mandamus under 
§ 10-2103. Fordham v. Fordham, 223 S. C. 
401, 76 S. E. 2d 299 (1953). 

It is applicable to a proceeding by a 
wife against her husband to enforce sup- 
port of their children. Fordham v. Ford- 
ham, 223 S. C. 401, 76 S. E. 2d 299 (1953). 
This section, and not § 10-301, determines 
venue of action for foreclosure of condi- 
tional sales contract. — Where defendant 
voluntarily surrendered possession of road 
scraper to plaintiff, which was security for 
debt under conditional sales contract, plain- 
tiff's action for foreclosure of the condi- 
tional sales contract properly triable in 
county in which defendant resided, such 
action not being of the class under § 10- 
301 "For the recovery of personal property 
distrained for any cause." W. C. Caye & 
Company v. Saul, 229 S. C. 306, 92 S. E. 
2d 696 (1956). 

Where action brought against nonresi- 
dent and resident in which venue laid in 
county other than that of resident, action, 
on motion, should be transferred to county 
of resident for trial. Lee v. Neal, 233 S. C. 
206, 104 S. E. 2d 291 (1958). _ 

Where both parties nonresidents plain- 
tiff has right to elect county in which he 
brings his action, such privilege being sub- 
ject to right of court to change place of 
trial for reasons set forth in § 10-310 (2) 
and (3). Whitley v. Lineberger Brothers, 
233 S. C. 182, 104 S. E. 2d 70 (1958). 

Special law governing situation where 
this section is applicable held unconstitu- 
tional — See note to § 15-1233. 

Applied in Webb v. Southern Ry. Co., 
221 S. C. 450, 71 S. E. 2d 12 (1952); King v. 
Moore, 224 S. C. 400, 79 S. E. 2d 460 
(1953): Melton v. Melton, 227 S. C. 183, 
87 S. E. 2d 485 (1955). 

Stated in Thomas v. Thomas, 218 S. C. 
235, 62 S. E. 2d 307 (1950), con. op. of 
Oxner, J. 

Cited in Reynolds v. Atlantic Coast 
Line R. Co., 217 S. C. 16, 59 S. E. 2d 344 
(1950), dis. op. of Oxner, J.; Taylor v. 
Wall, 231 S. C. 683, 100 S. E. 2d 400 (1957). 
II. ACTIONS AGAINST CORPORA- 
TIONS. 

No legislation specifies place of trial of 
transitory action against a corporation. 
Deese v. Williams, 236 S. C. 292, 113 S. E. 
2d 823 (1960). 

This section applicable to corporations, 
and for purpose of venue a corporation is 
resident not only of county where its princi- 
pal office is located but also of any county 
in which it has an office and conducts its 
corporate business. Deese v. Williams, 236 
S. C. 202. 113 S. E. 2d 823 (1960). 

Venue properly transferred to county 
of corporation's residence. — Where action 
was commenced against a domestic cor- 
poration in a county where it owned no 
property and had no agent, although the 
corporation did transact business in such 



county in that it delivered bakery prod- 
ucts to customers there by means of a 
truck operated by its agent or employee, 
venue was properly transferred to the 
county of the corporation's residence. 
Brown v. Palmetto Baking Co., 220 S. C. 
38, 66 S. E. 2d 417 (1951). 

Where local bottling company conducted 
its business in a county other than that of 
its residence, by selling crates of bottled 
drinks to its customers there and leaving 
tiie crates and bottles which were con- 
stantly exchanged, never having any de- 
*iee of permanence in hands of customer, 
it was never intention of legislature that 
property so transitorily in the county 
should be considered ownership of prop- 
erty therein within meaning of this section. 
Hopkins v. Sun Crest Bottling Company, 
228 S. C. 2&7, 89 S. E. 2d 755 (1955). (Edi- 
tor's note. — Without conceding the correct- 
ness of its decision, the court distinguished 
factually the case of Gibbes v. National 
Hospital Service, Inc., 202 S. C. 304, 24 
S. E. 2d 513, which held that policies of 
hospitalization insurance, issued by domes- 
tic insurance corporation, in possession of 
policyholders in Aiken County, constituted 
"p roperty" of the corporation in that 
county for venue purposes.) 

Where domestic corporation sued in 
county where it had no agent and owned 
no property and only made occasional de- 
liveries of lumber in such county when it 
was purchased from its plant in county of 
its legal residence, action should be trans- 
ferred to county of its residence. Thomas 
& Howard Co. of Conway v. Marion 
Lumber Co., 232 S. C. 304, 101 S. E. 2d 848 
(1958) ; 

Plaintiff's choice of venue not affected 
because one of defendants is a corporation. — 
If defendants in transitory action are a 
corporation and an individual resident in 
different counties, plaintiff has same choice 
"I venue as though both defendants had 
been natural persons. Deese v. Williams, 
236 S. C. 292, 113 S. E. 2d 823 ( I960). 

State Highway Department resident for 
venue purposes in each county, and personal 
codefendant may not insist as matter of 
i -ight that venue be laid originally in county 
of ins residence. Deese v. Williams, 236 
S. C. 292. 113 S. E. 2d 823 (I960). 

A foreign corporation establishes, etc. — 
Under this catchline in Code, add 3rd para. 

In order for foreign corporation to have 
right to change venue from county where 
sued to county where it had a resident 
agent, corporation had burden of showing 
not only that it had resident agent in that 
county but also offices there for transaction 
of its corporate business. Sanders v. Allis 
Chalmers Manufacturing Company, 235 
S. C. 259. Ill S. E. 2d 201 (1959). 

Plaintiff may elect venue in action 
against foreign corporation, subject, never- 
theless, to right of court to change place 



190 



§ 10-303.11 



1960 Cumulative Supplement 



§ 10-310 



of trial for reason set forth in § 10-310(1). 
Sanders v. Allis Chalmers Manufacturing 



Company, 235 S. C. 259, 111 S. E. 2d 
201 (1959). 



§ 10-303.11. Actions against State agencies and State officials; exceptions. 

The circuit court may hear and determine all questions, actions and controversies, 
other than those involving rates of public service companies for which specific 
procedures for review are provided in Title 58, affecting State boards, commissions 
and agencies and State officials in their official capacities in the circuit where such 
question, action or controversy shall arise. 

1954 (48) 1541. 

Cross reference. — As to fixed venue in 
action against public official, see § 10-302. 



§ 10-304. Suits against certain fiduciaries. 



Where an action was brought against 
a defendant individually and in his capac- 
ity as executor, but the complaint stated 
no cause of action against the defendant 
in his capacity as executor, the defendant 
in his capacity as executor was not a ma- 
terial and bona fide defendant, and a mo- 
tion for a change of venue from the 
county where defendant qualified as ex- 



ecutor to the county of his residence 
should have been granted. Wood v. Lea, 
219 S. C. 409, 65 S. E. 2d 669 (1951). 

Action for accounting against executor 
or administrator concerns settlement of 
estate and has to be brought in county in 
which estate is being administered upon. 
Irby v. Kidder, 226 S. C. 396, 85 S. E. 
2d 405 (1955). 



§ 10-307. Suits against insurance companies. 



This section clearly authorizes the trial 
of an action against an insurance com- 
pany in the county where the loss oc- 
curs even though the insurance company 
has no office or agent in such county. 
Padgett v. Calvert Fire Ins. Co., 221 
S. C. 166, 69 S. E. 2d 565 (1952). 

Section not applicable to action in tort 
for damages resulting from alleged fraud, 
deceit and misrepresentations as to cover- 
ages of the policies, the phrase "where the 

§ 10-310. Changing place of trial. 

I. GENERAL CONSIDERATION. 

Motion for change of venue addressed to 
judicial discretion of trial judge. State v. 
Livingston, 233 S. C. 400, 105 S. E. 2d 73 
(1958). 

Motions to change the place of trial are 
addressed to the discretion of the lower 
court. — In accord with paragraph under 
this catchline in Code. See South Carolina 
Elec. & Gas Co. v. Aetna Insurance Co., 
235 S. C. 142, 110 S. E. 2d 165 (1959). 

Section limits right to trial where de- 
fendant resides. 

Defendant in an action for personal 
injuries has a right to be sued in the 
county of his residence, but that right 
is subject to the right of plaintiff to have 
the place of trial changed to another 
county, if both the convenience of the 
witnesses and the ends of justice will be 
promoted thereby. Stanton v. Sims, 223 
S. C. 109. 74 S. E. 2d 693 (1953). 

Time to make motion for change is not 
fixed. Under this catchline in Code, add as 
2nd paragraph. 

There is no time prescribed in our 
statutes or rules for the making of a motion 



loss occurs" contemplating loss from a cas- 
ualty insured against under terms of policy. 
Hodge v. Reserve Life Insurance Com- 
pany, 229 S. C. 326, 92 S. E. 2d 849 (1956). 

Applied in South Carolina Elec. & Gas 
Co. v. Aetna Insurance Co., 235 S. C. 142, 
110 S. E. 2d 165 (1959). 

Cited in Ross v. American Income Life 
Insurance Company, 232 S. C. 433, 102 
S. E. 2d 743 (1958). 



to change the place of trial. Royal Crown 
Bottling Company v. Chandler, 228 S. C. 
412, 90 S. E. 2d 489 (1955). 

State court may change place of trial 
of action under Federal Employers' Lia- 
bility Act. Smith v. Atlantic Coast Line 
R Co., 218 S. C. 481, 63 S. E. 2d 311 
(1951). 

Applied in Padgett v. Calvert Fire Ins. 
Co., 221 S. C. 166, 69 S. E. 2d 565 (1952). 

Cited in Leppard v. Jordan's Truck 
Line, HO F. Supp. 811 (1953); Deese v. 
Williams, 236 S. C. 292, 113 S. E. 2d 823 
(1960). 

II. SUBSECTION (1). 

Answer in an action does not constitute 
waiver of the right to move to transfer 
the case to the proper county for trial. 
Brown v. Palmetto Baking Co., 220 S. C. 
38, 66 S. E. 2d 417 (1951); Witherspoon 
v. Spotts and Company, 227 S. C. 209, 
87 S E. 2d 477 (1955). 

Effect of failure to make motion for 
change of venue. — In an action against a 
public officer, which was not brought in 
the county where the cause of action arose 
as required by § 10-302, defendant could 



191 



§ 10-310 



Code ok Laws of South Carolina 



§ 10-310 



take the position that the trial court was 
without jurisdiction, notwithstanding his 
failure to make any motion for a change 
of venue to the proper county, since the 
question of jurisdiction of the subject 
matter may even be raised for the first 
time upon appeal. Langford v. State 
Board of Fisheries, 217 S. C. 118, 60 S. 
E. 2d 59 (1950). 

Where defendant fails to make motion 
for change of venue on ground that he was 
not resident of county in which action 
brought, question of jurisdiction of his 
person waived. Taylor v. Wall, 231 S. C 
683; 100 S. E. 2d 400 (1957). 

Change cannot be made if present venue 
is proper. — Motion of foreign corporation to 
change venue from county where sued to 
county where it had a resident agent, 
properly denied where it made no showing 
that it had offices in the latter county for 
transaction of its corporate business. 
Sanders v. Allis Chalmers Manufacturing 
Company, 235 S. C. 259, 111 S. E. 2d 201 
(1959). 

Action brought in county of nominal 
defendant. — On motion to change venue on 
ground that defendant joined solely for 
purpose of laying venue, court will inquire 
into facts of case sufficiently to determine 
probability of defendant being material 
when venue is dependent upon such de- 
fendant. Belger v. Caldwell, 231 S. C 
335, 98 S. E. 2d 758 (1957). 

And ability or inability to respond to 
monetary judgment has no_ value in de- 
termining venue except that it may be con- 
sidered in deciding question of whether or 
not such defendant is bona fide or mala 
fide defendant. Belger v. Caldwell, 231 S. C. 
335, 98 S. E. 2d 758 (1957); Doss v. 
Douglass Construction Company, 232 S. C. 
261, 101 S. E. 2d 661 (1958). 

Court's finding that one of defendants 
was not joined solely for purpose of laying 
venue, binding on appeal, and will not be 
disturbed unless wholly unsupported by 
evidence or manifestly influenced or con- 
trolled by error of law. Simmons v. Cohen. 
227 S. C. 606, 88 S. E. 2d 679 (1955); Bel- 
ger v. Caldwell, 231 S. C. 335, 98 S. E. 
2d 758 (1957). 

Court's finding that one of defendants 
was immaterial one not reviewable on ap- 
peal unless wholly unsuppported by evi- 
dence or manifestly influenced or controlled 
by error of law. Witherspoon v. Spotts and 
Company, 227 S. C. 209, 87 S. E. 2d 477 
(1955). 

Hearing judge properly overruled mo- 
tion on this ground which was supported 
only by plaintiff's affidavit. Rice v. Hart- 
ness Bottling Works, 226 S. C. 532, 86 
S. E. 2d 67 (1955). 

Where action brought in wrong county, 
it cannot be dismissed but must be trans- 
ferred. — Where action brought in a county 



where Court docs not have jurisdiction of 
subject matter or of person, the cause can- 
not be dismissed but must be transferred 
to proper county where Court does have 
jurisdiction. Taylor v. Wall, 231 S. C. 683, 
100 S. E. 2d 400 (1957). 

Motion to transfer, and not motion to 
dismiss, proper. — Where action against 
domestic corporation brought in wrong 
county, proper for defendant to move to 
transfer to county of its residence, rather 
than special appearance for purpose of 
making motion to dismiss. Thomas & 
Howard Co. of Conway v. Marion Lumber 
Co. 232 S. C. 204, 101 S. E. 2d 848 (1958). 

Cited in Brown v. Palmetto Baking 
Co., 221 S. C. 183, 69 S. E. 2d 598 (1952). 

III. SUBSECTION (2). 
Motion for change of venue addressed 

to discretion of trial judge and his disposi- 
tion of such motion will not be reversed 
unless abuse of such discretion to prejudice 
of defendant shown. State v. Britt, 235 S. C. 
395. Ill S. E. 2d 669 (1959). 

Discretion not abused. — Facts showed no 
abuse of discretion in refusing change of 
venue under subsection (2). Green v. 
Boney, 233 S. C. 49, 103 S. E. 2d 732 
(1958); South Carolina Elec. & Gas Co. 
v. Aetna Insurance Co., 235 S. C. 142, 110 
S. E. 2d 165 (1959). 

In murder prosecution facts showed no 
abuse of discretion in refusing change of 
venue. State v. Livingston, 233 S. C. 400, 
105 S. E. 2d 73 (1958). 

Popularity, influence or good reputation 
not sufficient to warrant change. — Fact 
alone that party to an action is popular, 
influential or enjoys a good reputation is 
ordinarily not sufficient to warrant a change 
of venue. Soutli Carolina Elec. & Gas Co. 
v. Aetna Insurance Co., 235 S. C. 142, 110 
S. E. 2d 165 (1959). 

Change of venue on ground that impar- 
tial jury cannot be obtained discretionary 
with court. South Carolina Elec. & Gas Co. 
v. Aetna Insurance Co., 235 S. C. 142, 110 
S. E. 2d 165 (1959). 

IV. SUBSECTION (3). 
Burden of proof under subsection (3). 
In accord with paragraph under this 

catchline in Code. See Patterson v. 
Charleston, etc., Ry. Co., 190 S. C. 66, 1 
S. E. 2d 920 (1939); Reynolds v. Atlantic 
Coast Line R. Co., 217 S. C. 16, 59 S. E. 
2d 344 (1950); Smith v. Atlantic Coast 
Line R. Co., 218 S. C. 481, 63 S. E. 2d 
311 (1951); Webb v. Southern Ry. Co., 
221 S. C. 450, 71 S. E. 2d 12 (1952); 
Haigler v. Westbury, 223 S. C. 517, 77 S. E. 
2d 207 (1953); McKinney v. Noland Com- 
pany, 227 S. C. 27, 86 S. E. 2d 607 (1955). 

The burden of showing manifest error, 
which amounts to an abuse of judicial dis- 
cretion, is upon the appellant. Wallace v. 
Dickerson Const. Co., 224 S. C. 396, 79 
S. E. 2d 371 (1953). 



192 



10-310 



1960 Cumulative Supplement 



§ 10-310 



Movant has burden of making prima 
facie showing that both convenience of 
witnesses and ends of justice will be pro- 
moted. Simmons v. Cohen, 227 S. C. 606, 
88 S. E. 2d 679 (1955); Holden v. Beach, 
228 S. C. 234, 89 S. E. 2d 433 (1955); Di- 
son v. Wimbly, 230 S. C. 187, 94 S. E. 2d 
877 (1956); McCauley v. McLeod, 230 S. 
C. 380, 95 S. E. 2d 611 (1956); King v. 
Moore, 231 S. C. 421, 98 S. E. 2d 849 
(1957); Perdue v. Southern Railway Com- 
pany, 232 S. C. 78, 101 S. E. 2d 47 (1957); 
Doss v. Douglass Construction Company, 

232 S. C. 261, 101 S. E. 2d 661 (1958); 
South Carolina Elec. & Gas Co. v. Aetna 
Insurance Co., 235 S. C. 142, 110 S. E. 2d 
165 (1959); Bryan v. Ross, 236 S. C. 299, 
114 S. E. 2d 97 (1960). 

Change of venue for convenience of wit- 
nesses and promotion of justice is discre- 
tionary with judge, and his ruling thereon 
should not be disturbed except upon clear 
showing of abuse of that discretion 
amounting to manifest error of law. Jack- 
son v. Powers, 230 S. C. 371, 95 S. E. 2d 
624 (1956); Whitley v. Lineberger Brothers, 

233 S. C. 182, 104 S. E. 2d 70 (1958); 
Brvant v. Aiken Petroleum Company, 234 
S. C. 300, 108 S. E. 2d 95 (1959); Bryan v. 
Ross. 236 S. C. 299, 114 S. E. 2d 97 (1960). 

Change of venue for convenience of wit- 
nesses and promotion of justice discretion- 
ary with judge, and his decision will not be 
disturbed on appeal except for manifest 
abuse of that discretion. Graham v. Beverly, 
235 S. C. 222, 110 S. E. 2d 923 (1959). 

Change of venue for convenience of wit- 
nesses and promotion of justice addressed 
to discretion of lower court, and its ruling 
will not be disturbed unless it appears from 
facts presented that court committed mani- 
fest abuse of a sound judicial discretion. 
Garrett v. Charleston & Western Carolina 
Rv. Co., 236 S. C. 75, 113 S. E. 2d 256 
C1960). 

Change of venue for convenience of wit- 
nesses and promotion of justice is dis- 
cretionary, etc. 

In accord with 1st paragraph under this 
catchline in Code. See Reynolds v. At- 
lantic Coast Line R. Co., 217 S. C. 16, 59 
S. E. 2d 344 (1950); Smith v. Atlantic 
Coast Line R. Co., 218 S. C. 481. 63 S. E. 
2d 311 (1951); Thompson v. S. C. State 
Highway Dept., 221 S. C. 250, 70 S. E. 
2d 241 (1952); Becker v. Uhe, 221 S. C. 
334, 70 S. E. 2d 346 (1952); Webb v. 
Southern Rv. Co., 221 S. C. 450, 71 S. 
E. 2d 12 (1952): Wingard v. Sims, 222 
S. C. 396. 73 S. E. 2d 279 (1952); Wil- 
son v. Southern Furniture Co., 224 S. C. 
281, 78 S. E. 2d 890 (1953); Wallace v. 
Dickerson Const. Co.. 224 S. C. 396, 79 S. 
E. 2d 371 (1953); Rice v. Hartness Bot- 
tling Works, 226 S. C. 532. 86 S. E. 2d 
67 (1955): McKinney v Noland Company, 
227 S. C. 27. 86 S. E. 2d 607 (1955); Sim- 
mons v. Cohen, 227 S. C. 606, 88 S. E. 2d 



679 (1955); Holden v. Beach, 228 S. C. 

234, 89 S. E. 2d 433 (1955); Dison v. Wim- 
bly, 230 S. C. 187, 94 S. E. 2d 877 (1956); 
McCauley v. McLeod, 230 S. C. 380, 95 
S. E. 2d 611 (1956); Herndon v. Hucka- 
bee Transport Corp., 231 S. C. 364, 98 S. 
E. 2d 833 (1957); King v. Moore, 231 
S. C. 421, 98 S. E. 2d 849 (1957); Perdue 
v. Southern Railway Company, 232 S. C. 
78, 101 S. E. 2d 47 (1957); Doss v. Doug- 
lass Construction Company, 232 S. C. 261, 
101 S. E. 2d 661 (1958). 

In accord with 3rd paragraph under this 
catchline in Code. See Beard v. Billups Pe- 
troleum Company, 228 S. C. 481, 90 S. E. 
2d 685 (1956). 

In accord with 4th paragraph under this 
catchline in Code. See Wilson v. Southern 
Furniture Co., 224 S. C. 281, 78 S. E. 2d 
890 (1953). 

"Judicial discretion" as applied to the 
determination of a motion of this kind is 
an elastic, relative term, and implies the 
absence of a hard and fast rule. Win- 
gard v. Sims, 222 S. C. 396, 73 S. E. 2d 
279 (1952). 

Where, as in this case, the facts are not 
in dispute, and it clearly appears that both 
the convenience of witnesses and the ends 
of justice would be promoted by chang- 
ing the place of trial, it becomes the duty 
of the Supreme Court to reverse the lower 
court and order that the place of trial 
be changed. Reynolds v. Atlantic Coast 
Line R. Co., 217 S. C. 16, 59 S. E. 2d 344 
(1950). 

For cases holding that the court below 
committed manifest legal error in refus- 
ing to change the venue on the ground of 
convenience of witnesses, see Smith v. 
Atlantic Coast Line R. Co., 218 S. C. 
481. 63 S. E. 2d 311 (1951): Becker v. Uhe, 

221 S. C. 334, 70 S. E. 2d 346 (1952); 
Beard v. Billups Petroleum Company, 228 
S. C. 481, 90 S. E. 2d 685 (1956). 

For case holding that the court be- 
low erred as a matter of law in granting 
the motion, see Webb v. Southern Ry. 
Co.. 221 S. C. 450, 71 S. E. 2d 12 (1952). 

For case holding that granting motion 
was not manifest abuse of judicial discre- 
tion, see King v. Moore, 231 S. C. 421, 
98 S. E. 2d 849 (1957). 

For cases holding that refusal of the 
motion did not constitute a manifest 
abuse of discretion, see Thompson v. S. 
C. State Highway Dept.. 221 S. C. 250. 
70 S. E. 2d 241 (1952); Wingard v. Sims, 

222 S. C. 396, 73 S. E. 2d 279 (1952) : Wil- 
son v. Southern Furniture Co., 224 S. C. 
281, 78 S. E. 2d 890 (1953): Simmons v. 
Cohen, 227 S. C. 606, 88 S. E. 2d 679 
(1955): Holden v. Beach, 228 S. C. 234, 89 
S. E. 2d 433 (1955); Dison v. Wimbly, 230 
S C. 187. 94 S. E. 2d 877 (1956): Hern- 
don v. Huckabee Transport Corp., 231 
S. C. 364, 98 S. E. 2d 833 (1957); Perdue 
v. Southern Railwav Company, 232 S. C. 
78, 101 S. E. 2d 47 '(1957); Doss v. Doug- 



193 



§ 10-311 



Code of Laws of South Carolina 



§ 10-311 



lass Construction Company, 232 S. C. 261, 
101 S. E. 2d 661 (1958); Whitley v. Line- 
bergcr Brothers, 233 S. C. 182, 104 S. E. 
2d 70 (1958); Garrett v. Charleston & 
Western Carolina Ry. Co., 236 S. C. 75, 
113 S. E. 2d 256 (1960); Bryan v. Ross, 
236 S. C. 299, 114 S. E. 2d 97 (1960). 

But both convenience of witnesses and 
promotion of ends of justice must appear 
together. 

In accord with 1st paragraph under thi9 
catchline in Code. See Webb v. Southern 
Ry. Co., 221 S. C. 450, 71 S. E. 2d 12 
(1952). 

Failure to establish to the satisfaction of 
the court either that a change of venue 
would serve the convenience of witnesses 
or that it would promote the ends of jus- 
tice would suffice for refusal of the mo- 
tion. Wilson v. Southern Furniture Co., 
224 S. C. 281, 78 S. E 2d 890 (1953). 

In accord with 2nd paragraph under thip 
catchline in Code. See Beard v. Billups Pe- 
troleum Company, 228 S. C. 481, 90 S. E. 
2d 685 (1956); Garrett v. Charleston & 
Western Carolina Ry. Co., 236 S. C. 75, 

113 S. E. 2d 256 (1960). 

Dismissal of an action without preju- 
dice upon plaintiff's motion made in or- 
der to allow him to bring the action in 
another county for the convenience of his 
witnesses does not preclude defendant, in 
a subsequent suit, from resorting to the 
provisions of subsection (3) of this sec- 
tion. Brown v. Palmetto Baking Co.. 
221 S. C. 183, 69 S. E. 2d 598 (1952). 

Greater number of witnesses not con- 
trolling. Brvan v. Ross, 236 S. C. 299, 

114 S. E. 2d 97 (1960). 

Earlier trial in county where action in- 
stituted not controlling. — Fact that earlier 
trial could be had in county where action 

§ 10-311. Same; procedure when fair 
county. 

Motion for change of venue addressed to 
judicial discretion of trial judge. State v. 
Livingston, 233 S. C. 400, 105 S. E. 2d 73 
(1958). 

Motion for change of venue addressed 
to discretion of trial judge and his disposi- 
tion of such motion will not be reversed 
unless abuse of such discretion to prejudice 
of defendant shown. State v. Britt, 235 S. C. 
395, 111 S. E. 2d 669 (1959). 

Where defendant applies for change of 
venue on ground that impartial jury cannot 
be obtained, duty of trial judge to make 
examination and inform himself of truth 
of averments, and where after hearing evi- 
dence trial judge satisfied that fair and im- 
partial jury may be had in county where 
crime alleged to have been committed, his 
refusal to change venue will be sustained 
except in case of an abuse of discretion. 
State v. Britt, 235 S. C. 395, 111 S. E. 2d 
669 (1959). 



instituted would not overcome strong 
prima iacie showing of moving party, even 
though the ends of justice may be pro- 
moted by speedy trial. Beard v. Billups Pe- 
troleum Company, 228 S. C. 481, 90 S. E. 
2d 685 (1956). 

Ends of justice promoted by having 
jury from same vicinage pass upon cred- 
ibility of witnesses. Simmons v. Cohen, 
111 S. C. 606, 88 S. E. -M 679 (1955); King 
v. Moore, 231 S. C. 421, 98 S. E. 2d 849 
(1957); Doss v. Douglass Construction 
Company, 232 S. C. 261, 101 S. E. 2d 661 
(1958); Brvan v. Ross, 236 S. C. 299, 114 
S. E. 2d 97 (1960). 

It is in promotion of ends of justice to 
have jury of vicinage pass upon credibility 
of witnesses, and where there is showing 
of convenience of witnesses, such consti- 
tutes prima facie showing that ends of jus- 
tice would be promoted by change. Beard 
v. Billups Petroleum Company, 228 S. C. 
481, 90 S. E. 2d 685 (1956). 

While right of defendant in civil action 
to trial in county of his residence, assured 
him under § 10-303, is a substantial right, 
jury of vicinage passing upon credibility 
of witnesses is in itself a promotion of jus- 
tier. Dison v. Wimbly, 230 S. C. 187, 94 
S. E. 2d 877 (1956). 

In accord with 3rd paragraph under this 
catchline in Code. See Perdue v. Southern 
Railway Company, 232 S. C. 78, 101 S. E. 
2d 47 (1957). 

Promotive of ends of justice to have 
credibility of witnesses passed upon by 
jurors of the "vicinage", which as here used 
means county in which witnesses reside. 
Graham v. Beverly, 235 S. C. 222, 110 
S. E. 2d 923 (1959). 



and impartial trial cannot be had in 

Change of venue is discretionary with 
court. State v. Mouzon, 231 S. C. 655, 
99 S. E. 2d 672 (1957). 

But it is a judicial and not an arbitrary 
discretion. State v. Mouzon, 231 S. C. 
655, 99 S. E. 2d 672 (1957). 

In the case of State v. Mouzon, 231 
S. C. 655, 99 S. E. 2d 672 (1957), the 
Supreme Court stated that while trial 
judge would have been fully justified in 
granting the motion of defendant for change 
of venue, it could not say his failure to do 
so constituted a clear abuse of discretion. 
State v. Mouzon, 231 S. C. 655, 99 S. E. 
(2d) 672 (1957). 

Review lies only where discretion is 
abused. — In absence of showing, as here, of 
abuse of discretion by trial judge in refusing 
to grant motion for change of venue on 
ground that defendant could not obtain fair 
and impartial trial, Supreme Court will not 
interfere with ruling. State v. Fuller, 227 
S. C. 138, 87 S. E. 2d 287 (1955); State v. 



194 



S 10-401 



1960 Cumulative Supplement 



§ 10-406.1 



Fuller, 229 S. C. 439, 93 S. E. 2d 463 
(1956); State v. Byrd, 229 S. C. 593, 93 
S. E. 2d 900 (1956). 

See State v. Byrd, 229 S. C. 593, 93 
S. E. 2d 900, for an opinion holding that 
the lower court's refusal to change the 
venue on ground that fair and impartial 
trial could not be had was not an abuse 
of its discretion as applied to facts therein. 

Discretion not abused. In murder prose- 
cution facts showed no abuse of discretion 
in refusing change of venue. State v. Liv- 
ingston, 233 S. C. 400, 105 S. E. 2d 73 
(1958). 

Trial judge's discretion wisely exercised 
in refusing motion for change of venue. 



State v. Britt, 235 S. C. 395, 111 S. E. 2d 
669 (1959). 

Effect of defendant's inability to retain 
local counsel. — In affirming trial judge's 
refusal to grant defendant's motion for 
change of venue, the court said that al- 
though ordinarily the fact that a defend- 
ant is unable to retain local counsel is a 
striking index of the condition of public 
sentiment, it would be going too far to 
hold that this necessitates in every case 
the granting of a motion to change venue, 
as much depends on the circumstances 
State v. Mouzon, 231 S. C. 655, 99 S. E. 
2d 672 (1957). 

Cited in Employers Mut. Liability Ins 
Co. v. Hendrix, 199 F. 2d 53 (1952) 



CHAPTER 5. 



Summonses, Orders of Publication and Service op Papers Generally. 



Sec. 
10-424 



10-425 
10-426 

10-426 

10-431 

10-433 



Article 2. 
Personal Service in State. 

3. Service on consolidated or 

merged corporation governed by 

laws of another state. 
Service on insurance companies. 
Service of process on unauthorized 

insurer. 
3. Service on attorney of reciprocal 

insurance subscribers. 
Service on nonresident automobile 

drivers and motor carriers. 
Service on nonresident individual 

fiduciaries. 



Sec. 

10-436. Service on persons confined. 

10-436.1. Service of legal papers upon pa- 
tients in State mental healtb 
facility. 

10-437. [Repealed] 

Article 3. 
Service by Publication or Out of State. 

10-451. When service by publication may be 
had. 

10-454. Publication and mailing of sum- 
mons, publication and service of 
certain orders 

10-455. Effect of personal service out of 
State. 



Article I. 
Summons Generally. 
§ 10-401. Actions commenced by service of summons. 

ruled. H. S. Chisholm, Incorporated v. 
Klinger. 229 S. C. 8, 91 S. E. 2d 538 (1956). 



Rule to show cause Bufficient. — Where 
action commenced by service of rule to 
shnw cause instead of summons, and rule 
and petition contained substantial requi- 
sites of a summons and defendant was 
neither misled nor prejudiced, objection to 
jurisdiction of defendant properly over- 

§ 10-404. By whom summons served. 

Service of summons and complaint upon 
defendant by secretary of plaintiff's at- 
torney valid. Williams v. Ray, 232 S. C. 
373, 102 S E. 2d 368 (1958). 



Stated in Greenville Commun. H. Corp. 
v. Alexander Smith, Inc., 230 S. C. 239. 
95 S. E. 2d 262 (1956). 

Cited in Melton v. Melton, 227 S. C. 
183. 87 S. E. 2d 485 (1955). 



Quoted in Hunter v. Afro-American 
Company of Baltimore City, 133 F. Supp. 
812 (1955). 



§ 10-406. When jurisdiction of action acquired. 

Applied in Williams v. Ray, 232 S. C. 
373, 102 S. E. 2d 368 (1958). 

§ 10-406.1. Voluntary appearance equivalent to service. 

Question of jurisdiction of person waived moved to dismiss on merits. H. S. Chis- 

where defendants appeared before Master, holm, Incorporated v. Klinger, 229 S. C. 

participated generally in reference without 8, 91 S. E. 2d 538 (1956). 
reservation, contested action on merits and 

195 



§ 10-407 



Code of Laws of South Carolina 



§ 10-421 



And where defendant served notice of 
motion to dissolve attachment and de- 
manded copy of complaint. Southeastern 
Equip. Co. v. One 1954 Autocar D. Tractor, 
234 S. C. 213, 107 S. E. 2d 340 (1959). 



Any action by defendant which really 
amounts to intent to be in court is also a 
voluntary appearance. H. S. Chisholm, In- 
corporated v. Klinger, 229 S. C. 8, 91 S. E. 

2d 538 (1956). 



§ 10-407. Proof of personal service or publication. 

Affidavit of secretary of plaintiff's at- Under subd. (4) the written admission 

torney was proof of service. Williams v. of the defendant is service. Williams v. 
Ray, 232 S. C. 373, 102 S. E. 2d 368 (1958). Ray, 232 S. C. 373, 102 S. E. 2d 368 (1958). 

§ 10-409. Amendment of process or proof of service. 



Amended proofs properly allowed. — 

Where original proofs of service showed 
service made on Sunday, the court prop- 
erly allowed filing of amended proofs to 
show correctly that service was in fact 
made on following day, and no prejudice 
resulted to defendants. H. S. Chisholm, In- 
corporated v. Klinger, 229 S. C. 8, 91 S E. 
2d 538 (1956). 

Defendants waived defects in service by 



their appearance by counsel whereby they 
subjected themselves to jurisdiction of the 
court. H. S. Chisholm, Incorporated V. 
Klinger, 229 S. C. 8, 91 S. E. 2d 538 (1956). 

No prejudice where court allowed filing 
of acceptance of service in addition to 
proof of service by affidavit. Williams v. 
Ray, 232 S. C. 373, 102 S. E. 2d 368 (1958). 

Applied in Corley v. Wells, 224 S. C. 198, 
78 S. E. 2d 186 (1953). 



Article 2. 
Personal Service in State. 
§ 10-421. How summons served on corporations generally. 

and had no agent there, it was entitled to 



I. DOMESTIC CORPORATIONS. 

Corporation must be sued in county of 
residence, unless it owns property and 
transacts business in another county. — 
Atkinson v. Korn Industries, 219 S. C. 
402, 65 S. E. 2d 465 (1951). 

Domestic corporation may be sued in 
any county in which it owns property and 
transacts business regardless of whether it 
maintains an office or has agents in such 
county. Seegars v. WIS-TV (Broadcasting 
Co. of the South), 236 S. C. 355, 114 
S. E. 2d 502 (1960). 

The phrase "transact business" is one 
of rather wide latitude. It is generally 
held that for a corporation to transact 
business within the meaning of such a 
statute, the business transacted by it in 
the county must be a part of its usual 
or ordinary business and must be con- 
tinuous in the sense of being distinguish- 
able from mere casual, occasional, or 
isolated transactions. However, no all- 
embracing rule can be laid down as to 
when a corporation transacts sufficient 
of its business within a county to bring 
it within the statute. Atkinson v. Korn 
Industries, 219 S. C. 402. 65 S. E. 2d 465 
(1951); Seegars v. WIS-TV (Broadcasting 
Co. of the South), 236 S. C. 355, 114 S. E. 
2d 502 (1960). 

Logging operations of manufacturing 
company held to constitute transaction of 
business in county where it owned tim- 
ber. Atkinson v. Korn Industries, 219 S. 
C. 402, 65 S. E. 2d 465 (1951). 

Transaction of business alone is insuffi- 
cient. — Where a domestic corporation 
transacted business in the county in which 
suit was brought, but owned no property 



have the action transferred to the county 
of its residence. Brown v. Palmetto Bak- 
ing Co., 220 S. C. 38, 66 S. E. 2d 417 
(1951). 

The requirement of ownership of prop- 
erty is not met by ownership of the truck 
by which the corporation's wares are ped- 
dled or delivered from another county. 
Brown v. Palmetto Baking Co., 220 S. 
C. 38, 66 S. E. 2d 417 (1951); Hopkins v. 
Sun Crest Bottling Company, 228 S. C. 
287,89 S. E. 2d 755 (1955). 

Not all property temporarily in a county 
is "property" within proviso of this sec- 
tion. Hopkins v. Sun Crest Bottling Com- 
pany, 228 S. C. 287, 89 S. E. 2d 755 (1955). 

Where local bottling company conducted 
its business in a county other than that of 
its residence, by selling crates of bottled 
drinks to its customers there and leaving 
the crates and bottles which were con- 
stantly exchanged, never having any de- 
gree of permanence in hands of customer, 
it was never intention of legislature that 
property so transitorily in the county 
should be considered ownership of prop- 
erty therein within meaning of this section. 
Hopkins v. Sun Crest Bottling Company, 
228 S. C. 287, 89 S. E. 2d 755 (1955). (Edi- 
tor's note. — Without conceding the correct- 
ness of its decision, the court distinguished 
(actually the case of Gibbes v. National 
Hospital Service, Inc., 202 S. C. 304, 24 
S. E. 2d 513, which held that policies of 
• spitalization insurance, issued by domes- 
tic insurance corporation, in possession of 
policyholders in Aiken County, constituted 
"property" of the corporation in that 
county for venue purposes.) 



196 



8 10-423 



1960 Cumulative Supplement 



§ 10-424 



II. FOREIGN CORPORATIONS. 
A. General Consideration. 

Question of jurisdiction of defendant is 
one of law for determination by the court 
and not one for a jury. — In order to obtain 
jurisdiction of foreign corporation in ac- 
tion in personam corporation must be do- 
ing business in State and process must be 
served upon its duly authorized officer or 
agent within State, and objection to juris- 
diction and motion to dismiss on ground 
that these requisites do not exist is a ques- 
tion for determination by the court, which 
includes all matters of fact alleged in mo- 
tion, and is not a question of fact for a 
jury. Bargesser v. Coleman Company. 
230 S. C. 562, 96 S. E. 2d 825 (1957). 

Conclusiveness of findings upon appeal. 
— Finding by circuit court as to jurisdic- 
tion or lack of jurisdiction will not be dis- 
turbed on appeal unless wholly unsup- 



ported by evidence or manifestly influ- 
enced or controlled by error of law. Bar- 
gesser v. Coleman Company, 230 S. C. 
562, 96 S. E. 2d 825 (1957). 

Cited in Boney v. Trans-State Dredging 
Co., S. C. , 115 S. E. 2d 508 (1960). 
C. Illustrations as to Existence of Agency. 

Customer of foreign corporation not 
agent. — Where attempted service of for- 
eign heating equipment corporation was 
made on local dealer who made cash pur- 
chases from corporation for resale, but had 
no other connection with the corporation, 
and corporation had no control over him 
nor he any authority to act for it, the cor- 
poration was not doing business in this 
State and was not amendable to process 
served on local dealer who was not its 
agent. Bargesser v. Coleman Company, 230 
S. C. 562, 96 S. E. 2d 825 (1957). 



§ 10-423. Same; qualification as to foreign corporations. 



Question of jurisdiction of defendant is 
one of law for determination by the court 
and not one for a jury. — In order to ob- 
tain jurisdiction of foreign corporation in 
action in personam corporation must be 
doing business in State and process must 
be served upon its duly authorized officer 
or agent within State, and objection to 
jurisdiction and motion to dismiss on 
ground that these requisites do not exist 
is a question for determination by the 
court, which includes all matters of fact 
alleged in motion, and is not a question of 
fact for a jury. Bargesser v. Coleman Com- 
pany, 230 S. C. 562, 96 S. E. 2d 825 (1957). 
(1957). 

Conclusiveness of findings upon appeal. 
— Finding by circuit court as to jurisdic- 
tion or lack of jurisdiction will not be dis- 



turbed on appeal unless wholly unsup- 
ported by evidence or manifestly influenced 
or controlled by error of law. Bargesser 
v. Coleman Company, 230 S. C. 562, 96 
230 S. C. 562, 96 S. E. 2d 825 (1957). 

Customer of foreign corporation not 
agent. — Where attempted service of for- 
eign heating equipment corporation was 
made on local dealer who made cash pur- 
chases from corporation for resale, but had 
no other connection with the corporation, 
and corporation had no control over him 
nor he any authority to act for it, the cor- 
noration was not doing business in this 
State and was not amenable to process 
served on local dealer who was not its 
agent. Bargesser v. Coleman Company. 
230 S. C. 562. 96 S. E. 2d 825 (1957). 



§ 10-424. Service on foreign corporations generally. 



Jurisdiction must be acquired by legal 
process constitutionally exercised. — For 
court to entertain action in personam 
against foreign corporation jurisdiction over 
person of such corporation must be ac- 
quired by legal process constitutionally ex- 
ercised, which comprises power to subject 
it to jurisdiction of court and effectively 
bringing it before court by proper process. 
Springs Cotton Mills v. Machinecraft, Inc., 
156 F. Supp. 372 (1957). 

Constitutional due process requires cor- 
poration to be present within state by do- 
ing business therein. — In order to subject 
foreign corporation to state jurisdiction, 
constitutional due process requires corpora- 
tion to be present within state by doing 
business therein unless it has consented to 
jurisdiction either explicitly such as appoint- 
ment of statutory agent to accept service 
or impliedly such as by general appearance. 
Springs Cotton Mills v. Machinecraft, Inc., 
156 F. Supp. 372 (1957). 



Foreign corporation has right to federal 
court opinion on validity of service of 
process. — After case removed from state to 
federal court, nonresident defendant cor- 
poration has legal right to opinion of fed- 
eral court as to validity of the service of 
process. Springs Cotton Mills v. Machine- 
craft, Inc., 156 F. Supp. 372 (1957). 

Federal authorities controlling as to 
"doing business within state". — In accord 
with 2nd paragraph under this catchline in 
Code. See Springs Cotton Mills v. Machine- 
craft. Inc., 156 F. Supp. 372 (1957). 

"Presence within the state" is phrase 
used to symbolize amount of corporation's 
activities within state which courts require 
in order to satisfy constitutional guarantee 
of due process. Springs Cotton Mills v. 
Machinecraft. Inc., 156 F. Supp. 372 (1957). 

Mere solicitation of business by another 
for foreign corporation does not bring it 
within orbit of "doing business" in state. — 
Merely because foreign corporation had 



197 



§ 10-424.3 Code of Laws of South Carolina § 10-426 

business solicited for it by two manu- otber state and not connected with any 
facturer's representatives, who also sold business activities in this State of the 
products of other concerns and who were foreign corporation, by service of sum- 
independent contractors, did not bring it mons and complaint upon Secretary of 
within orbit of "doing business" in state, State of this State, after foreign corpora- 
so as to subject it to state's jurisdiction by tion had withdrawn from this State. Foster 
service on Secretary of State. Springs v. Morrison, 226 S. C. 149, 84 S. E. 2d 344 
Cotton Mills v. Machinecraft, Inc., 156 F. (1954). 
Supp. 372 (1957). This and §§ 12-721 and 12-722, which 

This section permits service by mail constituted a single section in 1942 Code 

upon Secretary of State, provided there is (§ 7765), must be construed together, 

compliance with its other provisions. Foster v. Morrison, 226 S. C. 149, 84 S. E. 

Hunter v. Afro-American Company of 2d 344 (1954). Concurring opinion Legge, 

Baltimore City, 133 F. Supp. 812 (1955). A. J. 

Resident of this State cannot obtain Quoted in State v. National Postal 

Jurisdiction in this State of foreign cor- Transport Association, 234 S. C. 260, 107 

poration previously domesticated in this S. E. -d 763 (1959). 
State, upon a cause of action arising in an- 

§ 10-424.3. Service on consolidated or merged corporation governed by laws 
of another state. 

Service of process or notice of the nature stated in § 12-456.8 on a resulting or 
surviving corporation as therein defined shall be made by delivering to and leaving 
with the Secretary of State duplicate copies thereof with a fee of five dollars. The 
Secretary of State shall forthwith send by registered mail one of such copies to the 
address specified in the instrument appointing him as such agent, unless such 
corporation shall have designated in writing to him a different address for such 
purpose, in which case it shall be mailed to the last address so designated. 

1957 (50) 170. 

§ 10-425. Service on insurance companies. 

The summons and any other legal process in any action or proceeding against 
it shall be served on an insurance company as defined in § 37-2, including fraternal 
benefit associations, which shall have appointed the Chief Insurance Commissioner 
as its attorney pursuant to the provisions of § 37-105 only by delivering two copies 
thereof to the Commissioner as such attorney of such company and such service 
shall be deemed sufficient service upon such company. When legal process against 
any such company is served upon the Commissioner he shall forthwith forward 
by registered mail one of the duplicate copies prepaid directed to the company at 
its home office or, in the case of a fraternal benefit association, to its secretary or 
corresponding officer at the head office of the association. 

1947 (45) 322; 1960(51) 1646. 

Effect of amendment. — The 1960 amend- 
ment substituted Chief Insurance Com- 
missioner for Insurance Commissioner. 

§ 10-426. Service of process on unauthorized insurer. 

Service of process on the Chief Insurance Commissioner as the agent of an un- 
authorized insurer pursuant to § 37-265 shall be made by delivering and leaving 
with the Commissioner or some person in apparent charge of Iris office two copies 
thereof and the payment to him of such fees as may be prescribed by law. The 
Commissioner shall forthwith mail by registered mail one of the copies of such 
process to the defendant at its last known principal place of business and shall keep 
a record of all process so served upon him. Such service of process is sufficient if 
notice of such service and a copy of the process are sent within ten days thereafter 
by registered mail by the plaintiff's attorney to the defendant at its last known 
principal place of business and the defendant's receipt or a receipt issued by the 
postoffice with which the letter is registered, showed the name of the sender of 
the letter and the name and address of the person to whom the letter is addressed 

198 



§ 10-426.3 1960 Cumulative Supplement § 10-431 

and the affidavit of the plaintiff's attorney showing a compliance herewith are filed 
with the clerk of the court in which such action is pending on or before the date 
the defendant is required to appear or within such further time as the court may 
allow. But no plaintiff or complainant shall be entitled to a judgment by default, 
a judgment with leave to prove damages or a judgment pro confesso under this 
section until the expiration of thirty days from the date of the filing of the affi- 
davit of compliance. 

1947 (45) 322; 1960 (SI) 1646. 

Effect of amendment. — The 1960 amend- 
ment substituted Chief Insurance Com- 
missioner for Insurance Commissioner. 

§ 10-426.3. Service on attorney of reciprocal insurance subscribers. 

Service of process on the attorney, as defined in § 37-802, for subscribers, as 
defined in § 37-801, to reciprocal or inter-insurance contracts shall be made by 
serving three copies thereof upon the Chief Insurance Commissioner as the agent 
of such attorney pursuant to the provisions of § 37-806. The Commissioner shall 
file one copy, forward one copy to the attorney and return one copy with his ac- 
ceptance of service. 

1947 (45) 322; 1960 (51) 1646. 

Effect of amendment. — The 1960 amend- 
ment substituted Chief Insurance Com- 
missioner for Insurance Commissioner. 

§ 10-429. Service on unincorporated associations. 

A labor union is an unincorporated as- Army officers' mess immune from suit 

sociation and its liability to suit and proc- under federal law by which the State and 

ess is fixed by § 10-215 and this section. its courts are bound. Brame v. Garner, 232 

Hall v. Walters, 226 S. C. 430, 85 S. E. 2d S. C. 157, 101 S. E. 2d 292 (1957). 
729 (1955). 

§ 10-431. Service on nonresident automobile drivers and motor carriers. 

Service of process upon the Chief Highway Commissioner, as agent of a non- 
resident driver under the provisions of § 46-104, a resident driver who subsequently 
becomes a nonresident or a nonresident motor carrier under the provisions of 
§ 65-1230.5, shall be made by leaving a copy thereof, with a fee of one dollar 
except as to said motor carrier, in the hands of the Commissioner in his office 
and such service shall be sufficient service upon such nonresident if notice of 
such service and a copy of the process are forthwith sent by registered mail 
by the plaintiff or the Commissioner to the defendant and the defendant's re- 
turn receipt and the plaintiff's affidavit of compliance herewith are appended to 
the summons or other process and filed with the summons, complaint and other 
papers in the cause. The Commissioner shall keep a record of all such processes 
which shall show the day and hour of service upon him. When the registry return 
receipt shall be returned to the Commissioner he shall deliver it to the plaintiff 
on request and keep a record showing the date of its receipt by him and its delivery 
to the plaintiff. 

1949 (46) 342; 1956 (49) 1635; 1959 (51) 54. 

Effect of amendments. — The 1956 amend- tory agent for nonresident motorist as au- 
ment made this section and § 10-431.1 ap- thorized by § 46-104. Ward v. Miller, 230 
plicable to motor carriers. S. C. 288, 95 S. E. 2d 482 (1956). 

The 1959 amendment made this section Applied in Macri v. Flaherty, 115 F. 

applicable to a resident driver who sub- Supp. 739 (1953). 
sequently becomes a nonresident. Cited in Blackwell v. Vance Trucking 

Double time within which to answer not Company, 139 F. Supp. 103 (1956); Finger 
allowed under provisions of § 10-465 where v. Masterson, 152 F. Supp. 224 (1957). 
summons and complaint served upon statu- 

199 



§ 10-432.1 Code of Laws of South Carolina § 10-436 

§ 10-432.1. Service on nonresident directors. 

Constitutionality. — Where a state has an nor unreasonable attempt to exercise the 
interest in regulating operations and trans- authority vested in it in the public interest, 
actions by nonresidents, it has power to is not constitutionally objectionable as de- 
enact appropriate legislation for the bring- nying due process. Wagenberg v. Charles- 
ing of a nonresident into its forum in ac- ton Wood Products, 122 F. Supp. 74S 
tions affecting his transactions in that state, (1954). 
and this section, being neither an arbitrary 

§ 10-433. Service on nonresident individual fiduciaries. 

Service upon any individual nonresident executor, administrator, guardian, com- 
mittee or trustee of any claim, demand, debt, dues, summons or any other process 
or pleading in suits or actions relating to the administration of the estate in his 
charge may be made upon the resident of this State appointed by such fiduciary as 
his agent for such purpose pursuant to the provisions of §§ 19-591, 31-7 and 67- 
53 or, in the event of the death, removal, resignation or absence from the State of 
such agent or the inability of the person desiring to serve such agent so to do for 
any other reason, then upon the probate judge or the clerk of the court of com- 
mon pleas of the county wherein the application of such fiduciary for appointment 
was made. 

1942 Code § 8952; 1932 Code § 8952; Civ. C. '22 § 5368; Civ. C. '12 § 3591; 1902 (23) 
1064; 1933 (38) 200; 1934 (3S) 1402; 1935 (39) 387; 1937 (40) 523; 1955 (49) 456. 

Effect of amendment. — The amendment Citizenship and residence of admints- 

added §§ 31-7 and 67-53 to provisions pro- trator governs. 

viding for appointment of resident agent In accord with paragraph under this 

on whom service may be made. catchline in Code. See Mason v. Helms, 

97 F. Supp. 312 (1951). 

§ 10-436. Service on persons confined. 

If the suit be against a person imprisoned in this State or a patient in a State hos- 
pital or in any other similar place in or out of this State the summonses shall be 
served by delivering a copy thereof to the defendant personally. Such service shall 
be made by the sheriff of the county in which the person shall be imprisoned or 
confined or, in the case of persons imprisoned in the Penitentiary and patients in 
a State hospital or similar institution, by the superintendent of the institution or 
an assistant duly designated by such superintendent instead of the sheriff. But no 
person who makes such service, other than the sheriff, shall be entitled to any fee 
therefor. In the event that the superintendent of the institution shall designate an 
assistant to make such personal service of process, the superintendent shall sign 
a certificate reciting that such assistant has been designated by him for the purpose 
of making service of such process. 

1942 Code § 434; 1932 Code § 434; Civ. P. '22 § 390; Civ. P. '12 § 184; Civ. P. '02 
8 155; 1870 (14) § 157; 1873 (15) 497; 1882 (18) 256; 1883 (18) 437; 1887 (19) 835; 
1892 (21) 404; 1899 (23) 42; 1927 (35) 292; 1940 (41) 1831; 1941 (42) 275; 1949 (46) 
388; 1952 (47) 2042. 

Effect of amendment. — The amendment Thornton v. Sturgeon, 227 S. C. 294, 87 
merely eliminated a reference to a person S. E. 2d 821 (1955). 

confined in the State Hospital as "a luna- Cited in Pennsylvania T. & F. Mut. 

tic." Cas. Ins. Co. v. Thornton, 244 F. (2d) 823 

Service by special deputy. — Service by (1957). 
special deputy, appointed by Sheriff under Statutory method of service in foreign 

authority of § 53-83, upon inmate of State state must be followed. — Where defendant 
Penitentiary satisfied requirements of this is inmate in foreign state, the statutory 
section, which must be read with § 53-83, method of foreign state of service upon 
such special deputy being Sheriff's agent such person must be followed. Atty. Gen. 
or alter ego for such statutory purpose. Op., Mar. 26, 1959. 

200 



§ 10-436.1 1960 Cumulative Supplement § 10-454 

§ 10-436.1. Service of legal papers upon patients in State mental health fa- 
cility. 

The superintendent of a State mental health facility shall not accept service of 
legal papers, nor consent to the appointment of a guardian ad litem, for any pa- 
tient or trainee. When a legal paper is served on a patient or trainee in any hos- 
pital, clinic, training school or other institution maintained by the State for the 
care, treatment or training of persons who are mentally ill, mentally defective, 
epileptic, senile, drug addicted or alcoholic, a copy thereof shall be filed with the 
superintendent who shall cause it to be made a part of the permanent record of 
the person. The superintendent shall immediately, in writing, inform the court out 
of which the process issued of the date of service of the process, the procedure un- 
der which the patient or trainee was admitted to the institution, and the present 
mental and physical condition of the person. 

1952 (47) 2042. 

§ 10-437. Service of legal papers upon patients in State Hospital. 

Repealed by A. & J. R. 1952 (47) 2042. 
Cross reference. — See now § 10-436.1. 

§ 10-438. Service in other cases. 

Quoted in Hunter v. Afro-American 
Company of Baltimore City, 133 F. Supp. 
812 (1955). 

Article 3. 

Service by Publication or Out of State. 

§ 10-451. When service by publication may be had. 

* * * 

(5) When the defendant is a party to an adoption proceeding and is either a 
nonresident or upon whom service cannot be had within the State after due diligence. 

1942 Code § 436; 1932 Code § 436; Civ. P. '22 § 392; Civ. P. '12 § 185; Civ. P. '02 § 156; 
1870 (14) § 157; 1876 (16) 190; 1898 (22) 698; 1901 (23) 635; 1904 (24) 379; 1913 (28) 
40; 1914 (28) 534; 1933 (38) 452; 1940 (41) 1825; 1941 (42) 275; 1959 (51) 409. 

Effect of amendment. — The 1959 amend- lish that defendant had departed from 
ment added item (5). South Carolina for the purpose of avoiding 

I. GENERAL CONSIDERATION. the service of a summons in the action. 

Plaintiff must prove defendant left State King v. Moore, 224 S. C. 400, 79 S. E. 
for purpose of avoiding service. — Having 2d 460 (1953). 

invoked subsection (2) of this section as Applied in H. S. Chisholm, Incorporated 

authority for serving defendant in another v. Klinger, 229 S. C. 8, 91 S. E. 2d 538 
state, the burden was on plaintiff to estab- (1956). 

§ 10-454. Publication and mailing of summons, publication and service of 
certain orders. 

* * * 

In all cases in which publication is made the complaint must first be filed and 
the summons, as published, must state the time and place of such filing. When 
service is made by publication the ten days' notice of application for judgment 
to be made at chambers as required in contested cases of certain kinds by § 10-1203 
may be inserted in the first or any subsequent publication or mailed to the last 
known residence of the defendant. In case of publication of summons upon a minor 
under § 10-434, or on a person non compos mentis under § 10-435 when an order 
nisi has been passed and filed appointing a guardian ad litem it shall be sufficient 
publication of such order to publish with the summons, and it shall be a sufficient 
service of such order out of the State to serve with the summons, a notice giving 
the name and address of the guardian, the date when the appointment becomes 
absolute and the office in which the order is filed. 

201 



§ 10-455 



Code of Laws of South Carolina 



§ 10-465 



1942 Code §§ 37, 402, 436; 1932 Code §§ 37, 402, 436; Civ. P. '22 §§ 35, 359, 392; Civ. 
C. '12 § 3833; Civ. P. '12 §§ 165, 185; Civ. C. '02 § 2736; Civ. P. '02 §§ 137, 156; G. S. 
2115; R. S. 2247; 1818 (7) 321; 1870 (14) 139, 157; 1876 (161 190; 1882 (17) 38; 1887 
(19) 813; 1891 (20) 1123; 1898 (22) 698; 1899 (23) 30; 1901 (23) 635; 1904 (24) 379; 
1908 (25) 1055; 1912 (27) 623; 1913 (28) 40; 1914 (28) 534; 1920 (31) 806; 1921 (32) 
281; 1925 (34) 94; 1930 (36) 1247; 1933 (28) 50, 452; 1937 (40) 79; 1940 (41) 1825; 1941 
(42) 275; 1944 (43) 1326; 1956 (49) 1600. 

Effect of amendment. — The 1956 amend- the word "summons" on line ten; thereby 
mcnt eliminated "it" after the word "pub- eliminating the publication of certain 
lish" on line nine and added a comma after orders. The first paragraph was not changed. 

§ 10-455. Effect of personal service out of State. 

Personal service of the summons out of State shall be equivalent to publication 
and deposit in the post office and when such service is had no affidavit, as herein- 
above provided for, order for publication or deposit in the post office shall be neces- 
sary. Such personal service so made shall be complete and final on the day of the 
date of the personal service of the summons as fully as if such personal service 
had been made under provisions providing personal service within the State. 

1942 Code § 436; 1932 Code § 436; Civ. P. '22 § 392; Civ. P. '12 § 185; Civ. P. '02 
§ 156; 1870 (14) § 157; 1876 (16) 190; 1898 (22) 698; 1901 (23) 635; 1904 (24) 379; 
1913 (28) 40; 1914 (28) 534; 1933 (38) 452; 1940 (41) 1825; 1941 (.42) 275; 1960 (51) 1753. 

Effect of amendment. — The 1960 amend- service by publication is elsewhere author - 



ment made personal service out of state 
as effective as within the State under pro- 
visions providing therefor instead of under 
certain sections. 

Section applies only where service by 
publication is authorized. — This section au- 
thorizes personal service outside of the 
State only as the "equivalent" of publica- 
tion and mailing. The applicability of this 
section is limited to those cases in which 



ized by law. King v. Moore, 224 S. C. 400, 
79 S. E. 2d 460 (1953). 

Personal service in Maryland on a resi- 
dent of that state would be invalid, regard- 
less of South Carolina law. King v. Moore, 
224 S. C. 400, 79 S. E. 2d 460 (1953). 

Applied in H. S. Chisholm, Incorporated 
v. Klinger, 229 S. C. 8, 91 S. E. 2d 538 
(1956). 



Article 4. 
Service of Papers Generally. 
§ 10-461. How notices, etc., served. 

Cited in Ex Parte Wessinger, 235 S. C. 
239, 111 S. E. 2d 13 (1959). 

§ 10-463. Service by mail. 

Service upon Secretary of State pur- Hunter v. Afro-American Company of 
suant to § 10-424 may be made by mail. Baltimore City, 133 F. Supp. 812 (1955). 

§ 10-465. Double time allowed when service by mail. 



This provision is intended, etc. — In ac- 
cord with paragraph under this catchline 
in Code. See Ex Parte Wessinger, 235 
S. C. 239, 111 S. E. 2d 13 (1959). 

In the case of Morgan v. State Farm 
Mutual Insurance Company, 229 S. C. 44, 
91 S. E. 2d 723 (1956), where the Insurance 
Commissioner acknowledged service of the 
summons and complaint and mailed them 
to the insurance company, the Supreme 
Court refused to consider the contention 
of appellant that its answer was served 
within the time prescribed by this section 
for the reason that this position was not 
taken before hearing judge and issues not 
properly raised before hearing judge can- 
not be raised for first time before Supreme 



Court, except on questions of jurisdiction. 

Double time within which to answer not 
allowed under provisions of this section 
where summons and complaint served upon 
statutory agent for nonresident motorist 
as authorized by § 46-104. Ward v. Miller, 
230 S. C. 288, 95 S. E. 2d 482 (1956). 

Time for appealing from decision of 
highway condemnation board not extended 
by this section. — § 33-139 fixes beginning 
of running of appeal time limit at "receipt" 
of resolution of condemnation board and 
such "receipt" cannot be regarded as serv- 
ice by mail, and this section may not be 
invoked. Ex Parte Wessinger, 235 S. C. 
239, 111 S. E. 2d 13 (1959). 



202 



§ 10-469 1960 Cumulative Supplement § 10-604 

§ 10-469. Service on attorney. 

Service on attorney equivalent to serv- ated, service upon attorney of record for 

ice on party. — In action for declaratory re- plaintiff of petition for intervention was 

lief as to persons entitled to benefits under effective to give court jurisdiction. Bank 

trust agreement where court declared de- for Savings and Trusts v. Towe, 231 S. 

fendant entitled to benefits and left suit C. 268, 98 S. E. 2d 539 (1957). 
open for benefit of class similarly situ- 

§ 10-471. Service of process on Sunday. 

Defendants waived defect in service. — whereby they subjected themselves to juris- 

Where original proofs of service showed diction of the court. H. S. Chisholm, Incor- 

service made on Sunday, defendants waived porated v. Klinger, 229 S. C. 8, 91 S. E. 

such defect by their appearance by counsel 2d 538 (1956). 

§ 10-473. Chapter not applicable in contempt proceedings. 

Applied in Ward v. Miller, 230 S. C. 
288, 95 S. E. 2d 482 (1956). 

CHAPTER 6. 

Notice op Lis Pendens. 
§ 10-501. When filed. 

Complaint claiming equitable lien states for the plaintiff, and that building mate- 
claim which affects title to real property. rials belonging to the plaintiff have gone 
— A complaint, alleging claims for dam- into the improvements thereon, states a 
ages and for an accounting, and that the claim which affects the title to real prop- 
plaintiff has and claims an equitable lien erty within the meaning of this section, 
in certain described property by reason Finley v. Hughes, 106 F. Supp. 355 (1952). 
of the defendant having purchased said Cited in Vasiliades v. Vasiliades, 231 
real estate with funds he held in trust S. C. 366, 98 S. E. 2d 810 (1957). 

CHAPTER 7. 
Pleadings. 

Article 1. 
General Provisions. 
Sec. 

10-610 Supplemental complaint, answer 
and reply. 

Article 1. 

General Provisions. 

§ 10-602. Pleadings to be liberally construed. 

Pleadings should be liberally construed Hunter v. Hyder, 236 S. C. 378, 114 S. E. 
with view to doing substantial justice be- 2d 493 (1960). 

tween parties to action, Hunter v. Hyder, Regardless of the denomination of a 

236 S. C. 378, 114 S. E. 2d 493 (1960). pleading. 

Pleadings considered as a whole. — Proper In accord with paragraph under this 

consideration of pleadings in any cause re- catchline in Code. See Carolina Life Ins. 
quires that they be considered as a whole. Co. v. Bank of Greenwood, 217 S. C. 277, 

60 S. E. 2d 599 (1950). 

§ 10-603. Pleadings to be subscribed; when to be verified. 

Verification of complaint necessitated — Answer to verified complaint prepared, 

verification of answer. Tucker v. State accepted and retained by plaintiff's counsel, 

Farm Mutual Automobile Ins. Co., 232 constituted waiver of absence of verification 

S. C. 615, 103 S. E. 2d 272 (1958). of answer. Davis v. Davis, 236 S. C. 177. 

Absence of verification of answer waived. 113 S. E. 2d 819 (1960). 

§ 10-604. How and by whom verification made. 

Propriety of denial "on information and of such denial would appear to be recog- 

belief" recognized in this section. — While nized in this section. Clanton's Auto Auc- 

Code does not expressly provide for de- tion Sales v. Campbell, 230 S. C. 65, 94 

nial "on information and belief", propriety S. E. 2d 172 (1956). 

203 Volume I 



§ 10-606 



Code of Laws of South Carolina 



§ 10-606 



§ 10-606. Irrelevant, redundant and indefinite matter. 



Cross reference. — As to time when mo- 
tion must be noticed, see Circuit Court 
Rule 20. 

I. IRRELEVANT OR REDUNDANT 

MATTER GENERALLY. 

Order refusing to strike allegations in 
pleadings as irrelevant and redundant not 
appealable. Winchester v. United Insur- 
ance Company, 231 S. C. 288. 98 S. E. 
2d 530 (1957); Blackmon v. United Insur- 
ance Company, 233 S. C. 424, 105 S. E. 
2d 521 (1958). 

A defense is irrelevant when it has no 
substantial relation to the controversy be- 
tween parties to action, and when issue 
formed by its denial can have no connec- 
tion with, or effect upon, the cause of ac- 
tion. Olympic Radio and Television v. 
Baker, 230 S. C. 383, 95 S. E. 2d 636 
(1956). 

Applied in Nimmer v. Skipper, 229 S. 
C. 398, 93 S. E. 2d 105 (1956). 

II. MOTION TO STRIKE IRRELE- 
VANT MATTER IN PLEADING. _ 
Order refusing to strike allegations in 

pleadings as irrelevant and redundant not 
appealable. Sparks v. D. M. Dew & Sons, 
Inc., 230 S. C. 507, 96 S. E. 2d 488 (1957); 
Tate v. Oxner, 236 S. C. 318, 114 S. E. 
2d 225 (1960). 

But, while ordinarily an order refusing 
motion to strike not subject to interlocutory 
appeal, motion in nature of demurrer in- 
volving merits and going to heart of de- 
fense should be determined before trial, 
and appeal from its refusal was considered. 
Thomas v. Colonial Stores, Inc., 236 S. C. 
95, 113 S. E. 2d 337 (1960). 

Order refusing to strike not appealable 
except where motion to strike is in nature 
.of demurrer, or where there is appealable 
issue before Court, order refusing motion 
to strike may also be considered to avoid 
unnecessary litigation. Tate v. Oxner, 236 
S. C. 31S, '114 S. E. 2d 225 (1960). 

Motion to strike is addressed to discre- 
tion of circuit judge. Ellen v. King, 227 
S. C. 481, 88 S. E. 2d 598 (1955). 

Refusal of motion to strike not con- 
clusive upon trial of case on merits, movant 
not being precluded or in anywise prej- 
udiced in effort to exclude such testimony 
as may be offered in support of allegations 
sought to be stricken. Tate v. Oxner, 236 
S. C. 318, 114 S. E. 2d 225 (1960). 

Court not required to separate relevant 
from irrelevant. — On motion to strike por- 
tion of answer, where some of allegations 
were relevant, court was not required to 
dissect paragraph so as to separate those 
allegations germane to issues from those 
that were not, and would have been justi- 
fied in refusing motion. Jackson v. Banks 
Construction Company, 229 S. C. 461, 93 
S. E. 2d 604 (1956). (Editor's note.— 



This was obiter, the question not having 
been raised on appeal.) 

Irrelevant defense in action on account 
— In action by seller's assignee against 
buyer of goods, defense that seller's agent 
was personally indebted to buyer who in- 
structed agent to apply amount of such 
indebtedness to the account was irrele- 
vant, in absence of any allegation that 
claimed payment was made to seller's as- 
signee or to one expressly or impliedly au- 
thorized to receive it in its behalf, and re- 
fusal to strike such defense was error. 
Olympic Radio and Television v. Baker, 
230 S. C. 383, 95 S. E. 2d 636 (1956). 

It is not error to admit testimony In 
support of irrelevant allegations, etc. 

In accord with paragraph under this 
catchline in Code. See Shea v. Glens Falls 
Indemnity Company, 228 S. C. 173, 89 
S. E. 2d 221 (1955). 

Effect of failure to make motion to strike 
irrelevant matter. — Having failed to make 
motion to strike irrelevant allegation in 
complaint, appellant cannot complain on 
appeal of admission of testimony respon- 
sive to such allegation. Lundy v. Lititz 
Mutual Insurance Company, 232 S. C. 1, 
100 S. E. 2d 544 (1957). 

Irrelevant matter stricken in action for 
personal injuries. — Answer in personal in- 
jury action alleged that plaintiff had pre- 
viously recovered $29,000 in an action for 
personal injuries sustained in earlier motor 
vehicle collision resulting in severe head- 
aches and pain, and that alleged unbear- 
able pain and suffering resulting to plain- 
tiff from collision in instant action were 
in large part attributable to her injuries in 
earlier accident, and on motion to strike 
court refused to strike allegations as to 
earlier accident and resulting injuries, but 
eliminated all allegations referring to pre- 
vious action. Jackson v. Banks Construc- 
tion Company, 229 S. C. 461, 93 S. E. 2d 
604 (1956). 

Allegations as to punitive damages may 
be stricken. — Under this catchline in Code 
add: 

Allegations as to punitive damages 
stricken out in action to recover both ac- 
tual and punitive damages for alleged 
breach of insurance contract. Patterson v. 
Capital Life & Health Insurance Co., 228 
S. C. 297, 89 S. E. 2d 723 (1955). 

Contention that question of whether 
complaint states cause of action for puni- 
tive damages should be determined on the 
trial of the case and not by motion to 
strike, clearly without merit. Patterson v. 
Capital Life & Health Insurance Co., 228 
S. C. 297, 89 S. E. 2d 723 (1955). 

Tort allegations properly stricken from 
complaint in action ex contractu. Blackman 
v. Independent Life and Accident Ins. Co., 
229 S. C. 54, 91 S. E. 2d 709 (1956). 



204 



§ 10-608 



1960 Cumulative Supplement 



§ 10-609 



III. MOTION TO MAKE PLEADING 
DEFINITE. 

Circuit judge has wide discretion in 
passing on motion under this section to 
make more definite and certain. Seegars 
v. YVTS-TV (Broadcasting Co. of the 
South), 236 S. C. 355, 114 S. E. 2d 502 
(1960). 

Granting or refusal of motion is discre- 
tionary with trial court, whose action will 
not be disturbed except upon showing that 
allegations of complaint are insufficient 
to apprise defendant of issues he must an- 
swer and that manifest prejudice will re- 
sult from affirmance. Ellen v. King, 227 
S. C. 481, 88 S. E. 2d 598 (1955). 

Order granting motion to make counter- 
claim more definite and certain not appeal- 
able where information sought wholly 
within possession of defendants. Thomas & 
Howard Co. v. Fowler, 226 S. C. 377, 
85 S. E. 2d 278 (1955). 

Matters within knowledge of moving 



party. — Pleading will not be required to be 
made more definite and certain as to mat- 
ters which appear to be within knowledge 
of moving party or as to which adequate 
information is in his possession or avail- 
able to him. Ellen v. King, 227 S. C. 481, 
88 S. E. 2d 598 (1955). 

Motion to have pleadings made more 
definite is proper remedy in the following 
cases. Add at the end of paragraph under 
this catchline in Code: where information 
sought is wholly within possession of 
pleader. Thomas & Howard Co. v. Fowler, 
226 S. C. 377, 85 S. E. 2d 278 (1955). 

Enumeration of elements of general 
damages sufficient. — Where elements of 
general damages that plaintiff claims to 
have suffered are definitely enumerated 
in his complaint, it is not necessary that 
he state amount claimed for each of such 
elements; nor is he required to set forth 
evidentiary matter. Ellen v. King, 227 S. C. 
481, 88 S. E. 2d 598 (1955). 



§ 10-608. When allegation deemed true. 

Denial of knowledge or information does 
not put in issue plaintiff's corporate ca- 
pacity. — Defendant's mere denial that he 
has knowledge or information sufficient to 
form belief as to plaintiff's corporate ca- 
pacity does not put that fact in issue. Mul- 
lins Hospital v. Squires, 233 S. C. 186, 104 
S. E. 2d 161 (1958). 

Answer alleging contributory negli- 
gence. — In action for injuries sustained in 
railroad crossing collision where com- 
plaint did not charge negligence on 
ground that there was no light on engine, 
but answer alleged contributory negli- 
gence, such new matter in answer was 
deemed controverted by plaintiff and he 
had right to offer evidence that there was 
no light on engine to rebut defense of con- 
tributory negligence. Barnett v. Charleston 

§ 10-609. When court may permit filing after time expired. 



& Western Carolina Ry. Co., 230 S. C. 
525, 96 S. E. 2d 555 (1957). 

Affirmative defense deemed to be con- 
troverted by complaint. — Where judgment 
creditor's complaint alleged insured's com- 
pliance with terms and conditions of lia- 
bility policy and insurer set up affirmative 
defense that there was no liability under 
policy because no written notice of acci- 
dent given, if insurer desired a reply to 
this new matter it should have made ap- 
propriate motion pursuant to § 10-661, but 
not having availed itself of this remedy, 
plaintiff had no right to reply and under 
this section this defense was deemed to be 
controverted or denied. Brown v. State 
Farm Mutual Automobile L. Ins. Co., 233 
S. C. 376, 104 S. E. 2d 673 (1958). 



I. GENERAL CONSIDERATION. 

Cross references. — In Morgan v. State 
Farm Mutual Insurance Company, 229 
S. C. 44, 91 S. E. 2d 723 (1956), the court 
said that reasoning and language in cases 
having to do with motions for relief after 
judgment entered is equally applicable to 
rases arising under this section before 
judgment. See note to § 10-1213. 

See Circuit Court Rule 19. 

Same principles govern application of 
this section and § 10-1213. — Same principles 
govern Supreme Court's review of circuit 
court orders under this section and § 10- 
1213. Simon v. Flowers, 231 S. C. 545. 99 
S. E. 2d 391 (1957); Holliday v. Hollidav, 
235 R. C. 246. Ill S. E. 2d 205 (1959)." 

This section should have a liberal con- 
struction in furtherance of justice. McGhee 
v. One Chevrolet Sedan. 235 S. C. 37, 109 
S. E. 2d 713 (1959). 



Defaults not favored in divorce actions. — 
Defaults in divorce actions are more readily 
opened than in other cases. Holliday v. 
Holliday, 235 S. C. 246, 111 S. E. 2d 205 
(1959). 

Cited in Pennsylvania T. & F Mut. 
Cas. Ins. Co. v. Thornton, 244 F. 2d 823 
(1957); Strickland v. Rabon, 234 S. C. 218, 
107 S. E. 2d 344 (1959). 
II. DISCRETION OF THE COURT. 

Decision on morion to answer after time 
expressly left in discretion of court under 
terms of this section. Morgan v. State 
Farm Mutual Insurance Companv, 229 
S. C. 44. 91 S. E. 2d 723 M956): Simon v. 
Flowers, 231 S. C. 545, 99 S. E. 2d 391 
(J9<7). 

Discretionary power under this section 
vested in trial and not appellate court, and 
5' is not function or within power of Su- 
preme Court to substitute its judgment for 



205 



§ 10-609 



Code of Laws of South Carolina 



§ 1U-609 



that of circuit judge simply because it 
might have reached different conclusion 
had it been in his place. Simon v. Flowers, 
231 S. C. 545, 99 S. E. 2d 391 (1957). 

Motion under this section addressed to 
sound discretion of court and where court 
refuses to allow answer to be filed, ap- 
pellant, in order to prevail in Supreme 
Court, must show clear abuse of discretion 
by trial judge. Ward v. Miller, 230 S. C. 
288, 95 S. E. 2d 482 (1956). 

No relief will be granted except in the 
case of abuse of discretion. — Under this 
catchline in Code. Add Morgan v. State 
Farm Mutual Insurance Company, 229 
S. C. 44, 91 S. E. 2d 723 (1956). 

Or unless exercise of discretion, etc. — 
Under this catchline in Code. Add Morgan 
v. State Farm Mutual Insurance Company, 
229 S. C. 44, 91 S. E. 2d 723 (1956). 

And such abuse must be gross. — Under 
this catchline in Code. Add Morgan v. 
State Farm Mutual Insurance Company, 
229 S. C. 44, 91 S. E. 2d 723 (1956). 

Where neglect in failing to serve an- 
swer in time was shown but no excuse for 
it, there was no abuse of discretion in re- 
fusing motion to allow defendant to file 
answer. Ward v. Miller. 230 S. C. 288, 95 
S. E. 2d 482 (1956). 

No relief generally from mistake of law. 
— Trial court did not abuse its discretion in 
refusing to allow answer after expiration 
of time limit, where insurance company 
mistakenly assumed that time began to run 
from date of receipt of summons and com- 
plaint from Insurance Commissioner in- 
stead of from date of service upon the 
latter, as defendant must suffer the conse- 
quences in assuming to know the law 
thereabout and in so doing mistakes the 
law. Morgan v. State Farm Mutual Insur- 
ance Company, 229 S. C. 44, 91 S. E. 2d 
723 (1956); Simon v. Flowers, 231 S. C. 
545, 99 S. E. 2d 391 (1957). (Editor's note. 
—The Court in the Morgan case distin- 
guished the cases of Johnson v. Finger, 102 
S. C. 354, 86 S. E. 673, and Savage v. Can- 
non, 204 S. C. 473, 30 S. E. 2d 70, in which 
relief was granted from default brought 
about by counsel, who were promptly em- 
ployed by defendant and who in good faith 
took prompt steps to protect the interests of 
their clients, but were mistaken as to 
proper procedure in filing answers.) 

No relief will be granted except in the 
case of abuse of discretion. — Ruling of trial 
judge will not be disturbed by Supreme 
Court unless there is clear showing of abuse 
of discretion. McGhee v. One Chevrolet 
Sedan, 235 S. C. 37, 109 S. E. 2d 713 
(1959). 

There is no test to determine abuse. — 
There is no hard and fast rule to guide 
court in exercise of its discretion, and each 
case must be considered in light of its 
own attendant circumstances. McGhee v. 



One Chevrolet Sedan, 235 S. C. 37, 109 
S. E. 2d 713 (195y). 

What constitutes abuse of discretion. — 
Reversible error exists (1) when circuit 
judge s order was controlled by some error 
of law, or (2) where order based upon 
tactual considerations which were without 
adequate evidentiary support. Holliday v. 
llolhday, 235 S. C. 24b, 111 S. E. 2d 205 
(1959). 

111. APPLICATION OF SECTION. 

When relief should be granted. — When 
party makes showing of mistake, inad- 
vertence, surprise, or excusable neglect 
and applies promptly for relief after notice 
and makes prima facie showing of meri- 
torious defense, answer should be permitted 
to be filed. McGhee v. One Chevrolet 
Sedan, 235 S. C. 37, 109 S. E. 2d 713 
(1959). 

Excusable neglect shown. — Where wife 
commenced action for separate mainte- 
nance in County Court on very date of 
commencement of husband's action for 
divorce in Court of Common Pleas, in 
which latter action wife adjudged in de- 
fault, and on date of master's report she 
moved for leave to answer, and counsel 
for both parties had appeared in wife's 
action and an order pendente lite had been 
issued therein, and there had been pro- 
tected negotiations between counsel for 
support settlement, and husband's divorce 
action pressed with haste, circuit judge 
properly exercised his discretion in allow- 
ing wife to answer after default. Holliday 
v. Holliday, 235 S. C. 246, 111 S. E. 2d 
205 (1959). 

Discretion in refusing motion not 
abused. — In personal injury action where 
defendant adjudged in default, circuit 
judge did not abuse his discretion in re- 
fusing motion for permission to answer on 
ground of mistake and excusable neglect 
where default was result of forgetfulness 
on part of defendant's counsel brought 
about by pressure of his business in trial 
of cases and attending hearings. Simon v. 
Flowers, 231 S. C. 545, 99 S. E. 2d 391 
(1957). 

Discretion held abused. — Where counsel 
employed before expiration of time within 
which to answer in an in rem action 
against attached automobile, and in answer 
to his inquiry as to amount of time left 
plaintiff's counsel informed him that he 
did not know, though there was but one day 
left, and owner of defendant automobile 
had never been officially notified of attach- 
ment, and defendant's counsel made appli- 
cation under this section on 21st day after 
service, setting forth that defendant had 
meritorious defense, refusal of defendant's 
motion that it be permitted to file answer 
was an abuse of discretion requiring re- 
versal. McGhee v. One Chevrolet Sedan, 
235 S. C. 37, 109 S. E. 2d 713 (1959). 



206 



1960 Cumulative Supplement 



§ 10-642 



§ 10-610. Supplemental complaint, answer and reply. 

The plaintiff and defendant, respectively, may be allowed on motion to make a 
supplemental complaint, answer or reply alleging facts material to the case occur- 
ring after the former complaint, answer or reply or of which the party was ignorant 
when his former pleading was made and either party may, by leave of the court, 
in any pending or future action set up by a supplemental pleading the judgment 
or decree of any court of competent jurisdiction rendered since the commencement 
of the action, determining the matters in controversy in the action or any part 
thereof. If such judgment be set up by the plaintiff, the same shall be without 
prejudice to any provisional remedy theretofore issued or other proceedings had 
in the action on his behalf. 

1942 Code § 498; 1932 Code § 498; Civ. P. '22 § 440; Civ. P. '12 § 228; Civ. P. '02 
S 198; 1870 (14) § 200; 1953 (48) 287. 



Effect of amendment. — The amendment 
inserted the word "or" before the phrase 
"of which the party was ignorant." 

Supplemental pleadings are in discretion 
of the court. — In accord with paragraph 
under this catchline in Code. See Simonds 
v. Simonds, 232 S. C. 185, 101 S. E. 2d 494 
(1957). 

And should be only in interest of justice. 
— In accord with paragraph under this 



catchline in Code. See Simonds v. Simonds, 
232 S. C. 185, 101 S. E. 2d 494 (1957). 

Facts must have occurred after com- 
mencement of suit or must have been un- 
known to pleader. — In accord with para- 
graph under this catchline in Code. See 
Simonds v. Simonds, 232 S. C. 185, 101 
S. E. 2d 494 (1957). 

Cited in Vernon v. Atlantic Coast Line 
R. Co., 218 S. C. 402, 63 S. E. 2d 53 (1951). 



Article 2. 
Complaint or Notice 
§ 10-632. What complaint to contain. 

II. STATEMENT OF FACTS. 

What is essential to be proved is essential 
to be alleged. Hunter v. Hyder, 236 S. C. 
378, 114 S. E. 2d 493 (1960). 

Complaint is to apprise opposite party 
of nature of action. — One of primary pur- 
poses of complaint is to apprise opposite 
party of nature of action against him, and 



complaint should inform defendant of mat- 
ters and things which plaintiff may attempt 
to prove against him because without such 
knowledge defendant would be unable to 
prepare defenses and submit proof thereof. 
Hunter v. Hyder, 236 S. C. 378, 114 S. E. 
2d 493 (1960). 



Article 3. 
Demurrer or Answer. 

§ 10-641. Defendant to demur or answer within twenty days. 

Applied in Ward v. Miller, 230 S. C. (1957); Williams v. Ray, 232 S. C. 373, 102 
288, 95 S. E. 2d 482 (1956); Simon v. S. E. 2d 368 (1958); Strickland v. Rabon, 
Flowers, 231 S. C. 545, 99 S. E. 2d 391 234 S. C. 218, 107 S. E 2d 344 (1959). 



§ 10-642. When the defendant may 

I. DEMURRER WHEN COURT 
LACKS JURISDICTION. 

Lack of jurisdiction must appear on face 
of complaint. — In accord with paragraph 
under this catchline in Code. See Taylor v. 
Wall, 231 S. C. 683, 100 S. E. 2d 400 (1957). 

Court is limited to allegations of com- 
plaint which must be accepted as true, and 
cannot consider facts not alleged therein. 
Taylor v. Wall, 231 S. C. 683, 100 S. E. 2d 
400 0957). 

II. DEMURRER WHEN PLAINTIFF 
LACKS CAPACITY TO SUE. 

Failure to demur constitutes waiver of 
objection. — Where complaint alleges capac- 
ity in which plaintiffs brought action, fail- 



demur. 

ure to demur on this ground will be con- 
sidered a waiver of it. Bramlett v. Young, 
229 S. C. 519, 93 S. E. 2d 873 (1956); 
Sloan v. City of Greenville, 235 S. C. 
277, 111 S. E. 2d 573 (1959). 
IV. DEMURRER WHEN THERE IS A 
DEFECT OF PARTIES. 

Provided the defect appears on face of 
complaint. — When alleged defect of parties 
does not appear upon the face of com- 
plaint, the objection can onlv be taken by 
answer. Turner v. Byars, 226 S. C. 289, 
85 S. E. 2d 100 (1954). 

Non-joinder of a proper, as distinguished 
from a necessary, party is not ground for 
demurrer. Huggin v. Gaffney Development 



207 



§ 10-642 



Code of Laws of South Carolina 



§ 10-642 



Company, 229 S. C. 340, 92 S. E. 2d 883 
(1956). 

VI. DEMURRER WHEN FACTS IN 

COMPLAINT INSUFFICIENT TO 

CONSTITUTE CAUSE OF 

ACTION. 

Cross reference. — For cases as to suffi- 
ciency of complaint for declaratory relief 
against demurrer, see §§ 10-2002 and 10- 
2003. 

A complaint is sufficient if it states any 
cause of action. Roper v. South Carolina 
Tax Commission, 231 S. C. 587, 99 S. E. 
2d 391 (1957); Warr v. Carolina Power & 
Light Company, S. C. .115 S. E. 2d 

799 (1960). 

Or where plaintiff is entitled to relief 
thereunder. — In accord with paragraph un- 
der this catchline in Code. See Thomas & 
Howard Co. v. Fowler, 225 S. C. 354, 82 
S. E. 2d 454 (1954). 

Demurrer will not be sustained where 
plaintiff entitled to any form of relief, and 
allegations of complaint with relevant in- 
ferences reasonably deducible therefrom 
are to be liberally construed in plaintiff's 
favor. Turbeville v. Gordon, 233 S. C. 75, 
103 S. E. 2d 521 (1958). 

In passing upon demurrer court is 
strictly limited to consideration of plead- 
ing under attack, all properly pleaded 
factual allegations whereof being deemed 
admitted. Spell v. Traxler, 229 S. C. 466, 
93 S. E. 2d 601 (1956); Roper v. South 
Carolina Tax Commission, 231 S. C. 587, 
99 S. E. 2d 391 (1957); Outlaw v. Calhoun 
Life Insurance Company, 236 S. C. 272, 
113 S. E. 2d 817 (1960); Warr v. Carolina 
Power & Light Company, S. C. .115 

S. E. 2d 799 (1960). 

Question raised by demurrer must be re- 
solved from face of complaint alone, and 
facts properly pleaded must be taken as 
true. Calvert Fire Insurance Company v. 
Tames, 236 S. C. 431. 114 S. E. 2d M2 
(1960). 

Court is limited to allegations of com- 
plaint which must be accepted as true, and 
cannot consider facts not alleged therein. 
Clifton v. Darlington Finance Company, 
231 S. C. 672, 100 S. E. 2d 404 (1957). 

Facts stated in complaint must be taken 
as true for purpose of considering demurrer. 
Wallace v. Timmons, 232 S. C. 311, 101 
S. E. 2d 844 (1958). (Editor's note.— The 
opinion in this case was originally published 
in VVestbrook Advance Sheets as Opinion 
No. 17339, filed Aug. 20, 1957. A rehearing 
was granted, and presumably the original 
opinion was withdrawn and the new opinion 
published in Westbrook Advance Sheets as 
Opinion No. 17386, filed Feb. 6, 1958.); 
Thomason v. Hellams, 233 S. C. 11, 103 
S. E. 2d 324 (1958). 



Complaint must be accepted as true for 
purpose of demurrer. Mills v. Town of 
Kingstree, S. C. ,115 S. E. 2d 52 

(I960). 

Facts properly pleaded must be taken as 
true when attacked by demurrer and plead- 
ing must be construed liberally in favor 
of pleader. Strong v. Winn-Dixie Stores, 
Inc.. 235 S. C. 552, 112 S. E. 2d 646 (1960). 

Allegations of complaint in action for 
slander must be taken as true for purpose of 
consideration of demurrer on ground that 
no cause of action stated. Timmons v. News 
& Press, 232 S. C. 639, 103 S. E. 2d 277 
(1958). 

Facts alleged must be considered as 
true and liberally construed in favor of 
plaintiff along with those relevant infer- 
ences deducible therefrom in determining 
question on demurrer. Williams v. United 
Insurance Company, 226 S. C. 574, 86 S. 
E. 2d 486 (1955) 

Inferences from alleged fact to be con- 
sidered. — When a fact is pleaded, what- 
ever inferences of law or conclusions of 
fact may properly arise from it are to be 
regarded as embraced in such averment. 
Roper v. South Carolina Tax Commis- 
sion. 231 S. C. 587, 99 S. E. 2d 391 (1957); 
Outlaw v. Calhoun Life Insurance Com- 
pany, 236 S. C. 272, 113 S. E. 2d 817 (1960) ; 
Warr v. Carolina Power & Light Company, 
S. C. , 115 S. E. 2d 799 (1960). 

Demurrer admits facts alleged in com- 
plaint but not inferences drawn by plaintiff, 
it being for the court to determine if such 
inferences are justifiable. Drakeford v. 
Dixie Home Stores, 233 S. C. 519, 105 S. E. 
2d 711 (1958); Warr v. Carolina Power & 
Light Company. S. C. . 115 S. E. 

2d 799 (1960) 

Conclusions of fact not admitted by de- 
murrer. Alderman v. Bivin, 233 S. C. 545, 
106 S. E. 2d 385 (1958). 

Conclusion not admitted. — Allegation of 
guilt of fraud and deceit nothing more than 
conclusion of pleader and is not admitted by 
demurrer. Warr v. Carolina Power & Light 
Company. S. C. . 115 S. E. 2d 799 

(196m. 

Res judicata cannot be raised by de- 
murrer where facts of prior adjudication do 
not appear on face of complaint. Clifton v. 
Darlington Finance Company, 231 S. C. 
67-', 100 S. E. 2d 404 (1957). 

Question of laches should not be decided 
on demurrer if there are allegations in the 
pleading tending to show explanation or 
excuse for delay. Wallace v. Timmons, 232 
S. C. 311, 101 S. E. 2d 844 (1958). (Editor's 
note. — The opinion in this case was origin- 
ally published in Westbrook Advance 
Sheets as opinion No. 17339, filed Aug. 20, 



208 



1960 Cumulative Supplement 



10-652 



1957. A rehearing was granted, and pre- 
sumably the original opinion was with- 
drawn and the new opinion published in 
Westbrook Advance Sheets as Opinion No. 
173S6, tiled Feb. 6, 1958.) 

§ 10-643. What demurrer to specify. 

Effect of demurrer to whole com- 
plaint. — If the defendant elects to demur 
to the whole complaint, and not to the 
causes of action separately, the judge is 
not required in passing on the demur- 
rer to go beyond the allegations of the 
first cause of action, if he finds them 
sufficient to entitle plaintiff to relief. 
Wolfe v. Herlihy, 218 S. C. 90, 61 S. E. 
2d 764 (1950). 

Demurrer must be to entire cause of 

§ 10-644. Pleading after demurrer. 

Defendant should be given leave to an- 
swer after demurrer overruled. — Where 
wife of seller made defendant in action for 
specific performance of contract to sell 
real estate for purpose of determining her 
dower interest, and her demurrer was over- 



In action for fraud and deceit demurrer 
should have been sustained where there was 
no allegation that plaintiff suffered damage 
as result of alleged misrepresentation. Warr 
v. Carolina Power & Light Company, 
S. C. , 115 S. E. 2d 799 (1960). 



action, and not to part of cause of action 
or defense. 

In accord with this catchline in Code. 
See Thomas & Howard Co. v. Fowler, 225 
S. C. 354, 82 S. E. 2d 454 (1954). 

Ground too general to consider. — De- 
murrer on ground that complaint fails to 
state elementary particulars necessary to 
constitute a cause of action is too general 
to be considered. Franks v. Anthony, 231 
S. C. 191, 97 S. E. 2d 891 (1957). 



ruled, she should be given leave to an- 
swer. Butler v. Schilletter, 230 S. C. 552, 
96 S. E. 2d 661 (1957). 

Applied in Watson v. City of Orange- 
burg, 229 S. C. 367, 93 S. E. 2d 20 (1956). 



§ 10-648. Reliance on jurisdictional objection; effect of subsequent pleading. 



But objection to jurisdiction of person 
by special appearance may be waived by 
participation in prior event. — In accord with 
paragraph under this catchline in Code. See 
Southeastern Equip Co. v. One 1954 Auto- 
car D. Tractor, 234 S. C. 213, 107 S. E. 2d 
340 (1959). 

Defendants failed to conform to proce- 
dure required by this section to preserve 
jurisdictional question, where they ap- 

§ 10-652. What answer to contain. 

II. CONTENTS OF ANSWER. 

Denial "on information and belief" man- 
ifestly not same as denial "of knowledge 
or information sufficient to form a belief", 
former being predicated upon information 
in possession of pleader and latter upon 
absence of such information; and while 
Code does not expressly provide for denial 
"on information and belief", propriety of 
such denial would appear to be recog- 
nized in § 10-604. Clanton's Auto Auction 
Sales v. Campbell, 230 S. C. 65, 94 S. E. 
2d 172 (1956). 

But denial in either of above forms with 
respect to plaintiff's capacity to sue, or 
to facts presumptively within defendant's 
knowledge, or to matters of public record, 
is not sufficient to put such facts in issue. 
Clanton's Auto Auction Sales v. Campbell, 
230 S. C. 65, 94 S. E. 2d 172 (1956). 

Sufficiency of denial. — In plaintiff's ac- 
tion for damages to automobile, defendant's 



peared before Master, participated generally 
in reference without reservation, contested 
action on merits and moved to dismiss on 
merits, and thereafter belatedly made point 
that they should have been served with 
summons rather than rule to show cause. 
H. S. Chisholm, Incorporated v. Klinger, 
229 S. C. 8, 91 S. E. (2d) 538 (1956). 

Applied in Jenkins v. McCarey, 222 S. 
C. 426, 73 S. E. 2d 446 (1952). 



denial of plaintiff's ownership of automo- 
bile upon information and belief was suf- 
ficient to put plaintiff's ownership in issue, 
such ownership not being a matter of pub- 
lic record presumptively within defend- 
ant's knowledge did not require specific 
and unqualified denial in order to put 
plaintiff to the proof of it. Clanton's Auto 
Auction Sales v. Campbell, 230 S. C. 65, 
94 S. E. 2d 172 (1956). 

Facts put in issue by general denial. — 
A general denial does not raise the issue 
of existence of partnership alleged, a spe- 
cific denial of partnership being necessary 
to make such issue. Concrete Mix v. James, 
231 S. C. 416. 98 S. E. 2d 841 (1957). 

Defendant's mere denial that he has 
knowledge or information sufficient to form 
belief as to plaintiff's corporate capacity 
does not put that fact in issue. Mullins 
Hospital v. Squires, 233 S. C. 186, 104 S. E. 
2d 161 (1958). 



209 



§ 10-654 



Code of Laws of South Carolina 



§ 10-661 



§ 10-654. Sham and irrelevant defenses to be stricken out. 



Cross reference. — See notes to § 10-1505. 

Sham pleading is one good in form but 
false in fact and not pleaded in good faith, 
but pleading will be stricken only where 
its falsity clearly appears. Scott v. Meek, 

228 S. C. 29, 88 S. E. 2d 768 (1955). 
Defense cannot be stricken as sham 

where there is no showing of its falsity 
and allegations of it must be taken as true. 
Olympic Radio and Television v. Baker, 
230 S. C. 383, 95 S. E. 2d 636 (1956). 

A motion to strike as sham differs from 
motion to strike for irrelevancy in that the 
latter is in the nature of a demurrer. Black- 
well v. United Insurance Co. of America, 

229 S. C. 296, 92 S. E. 2d 702 (1956). 
Striking of answer or defense as sham 

is drastic remedy and is available only with 
respect to an answer or defense which is 
good in form but false in fact and not 
pleaded in good faith, being a mere pre- 
tense; but the remedy is rarely allowed, 
rslackwell v. United Insurance Co. of 
America, 229 S. C. 296, 92 S. E. 2d 702 
(1956). 

A false pleading should be stricken out as 
sham. — In accord with 2d paragraph under 
this catchline in Code. See Hamilton v. 
Patterson, S. C. ,115 S. E. 2d 68 

(1960). _ 

Pleading not disposed of under this sec- 
tion if its truth or falsity in doubt. — Where 
issue of truth or falsity of pleading in 
doubt, it should be resolved upon trial of 
cause and not upon hearing of motion to 
strike as sham; but where showing in 
support of motion is susceptible of no 
reasonable inference other than that plead- 
ing is in fact sham, motion to strike should 
be granted. Scott v. Meek, 228 S. C. 29, 
88 S. E. 2d 768 (1955). 

Counterclaim may be stricken as sham.— 
Where defendant set up counterclaim in 
action for damages arising out of automo- 
bile collision, and it was shown that de- 



fendant had been paid in full for all in- 
juries and damage resulting to him from 
accident and that he had executed uncon- 
ditional release discharging plaintiff, motion 
to strike counterclaim as sham should have 
been granted. Scott v. Meek, 228 S. C. 29, 
88 S. E. 2d 768 (1955). 

Answer stricken as sham and irrelevant. 
— In action for specific performance of 
written contract to sell real estate where 
answer admitted performance of contract 
on part of purchaser, all allegations of 
vendor's answer which varied or altered 
written contract in any way were properly 
stricken as sham and irrelevant as obvious- 
ly intended for purpose of delay, it being 
duty of court to strike out an answer as 
sham, notwithstanding fact that answer 
contains general denial, if admissions in 
remainder of answer disclose that there is 
no defense. Butler v. Schilleter, 230 S. C. 
552, 96 S. E. 2d 661 (1957). 

Judgment entered for plaintiff upon 
pleadings where answer stricken as sham 
and frivolous. United States Casualty Co. 
v. Hiers, 233 S. C. 333, 104 S. E. 2d 561 
(1958). 

Application of this section to a complaint 
doubtful. — While seriously doubting that 
this section applies to a complaint, the 
Court assumed that motion to strike com- 
plaint as sham was properly before it and 
considered it on the merits, holding that 
where complaint did not show on its face 
facts of prior adjudication, motion to strike 
or dismiss is not proper method of pre- 
senting defense of res judicata. Clifton v. 
Darlington Finance Company, 231 S. C. 672, 
100 S. E. 2d 404 (1957). (Editor's note.— 
See Fishburne v. Minott, 72 S. C. 567, 52 
S. E. 648, where the Court, referring par- 
ticularly to § 10-1505, stated that the Code 
made no express provision for summarily 
disposing of a complaint that was frivolous.) 



Article 4. 
Subsequent Pleadings. 
Reply and demurrer to answer. 



§ 10-681. 

Plaintiff not required to reply unless 
answer contains new matter constituting 
counterclaim. — Under this catchline in Code 
add: 

In absence of statute requiring estoppel 
in pais to be pleaded, it is not necessary to 
do so; and in landowner's action against 
railroad company for injunctive relief and 
damages because of construction of passing 
track resulting in diversion and concentra- 
tion of surface waters, trial court erred in 
excluding landowner's evidence proffered 
to overcome railroad company's defense of 
right-of-way by adverse possession and es- 
toppel, even though landowner did not so 



plead. Lee v. Southern Railway Company, 
228 S. C. 244, 89 S. E. 2d 431 (1955). 

Or unless required to reply by special 
order of the court. — In accord with 2nd 
paragraph under this catchline in Code. 
See Lee v. Southern Railway Company, 228 
S. C. 244, 89 S. E. 2d 431 (1955); Edwards 
v. Great American Insurance Company, 234 
S. C. 404, 108 S. E. 2d 582 (1959). 

No right to reply except under order of 
court. — Where judgment creditor's com- 
plaint alleged insured's compliance with 
terms and conditions of liability policy and 
insurer set up affirmative defense that there 
was no liability under policy because no 



210 



§ 10-673 



1960 Cumulative Supplement 



§ 10-679 



written notice of accident given, if insurer 
desired a reply to this new matter, it should 
have been made appropriate motion pur- 
suant to this section, but not having availed 
itself of this remedy, plaintiff had no right 
to reply and under § 10-608 this defense was 
deemed to be controverted or denied. Brown 
v. State Farm Mutual Automobile L. Ins. 
Co., 233 S. C. 376, 104 S. E. 2d 673 (1958). 

And plaintiff 8 reply is for the benefit of 
the defendant. — In accord with paragraph 
under this catchline in Code. See Lee v. 
Southern Railway Company, 228 S. C. 244, 
89 S. E. 2d 431 (1955). 

Counterclaim not subject to demurrer if 
it contains any allegations entitling party to 
relief, and the same rule applies to an an- 
swer. Thomas & Howard Co. v. Fowler, 
225 S. C. 354, 82 S. E. 2d 454 (1954). 

Set off must be such that separate action 
could be maintained. — Where defendant's 



cause of action had not accrued at time of 
commencement of action and therefore it 
could not have maintained a separate action 
thereon, its attempted set off based thereon 
was subject to demurrer. Brock v. Mason, 
233 S. C. 40, 103 S. E. 2d 423 (1958). 

A demurrer which goes only to a por- 
tion of one of the defenses is properly 
overruled. Bryant v. Bryant, 223 S. C. 489. 
76 S. E. 2d 927 (1953). 

Unappealed order overruling demurrer 
to answer became law of case. — Unap- 
pealed order overruling demurrer to an- 
swer thereby adjudging that facts alleged 
in answer constituted a defense to plain- 
tiffs' cause of action became the law of 
the case, whether right or wrong. Schrei- 
berg v. Southern Coatings & Chemical 
Company, 231 S. C. 69, 97 S. E. 2d 214 
(1957). 



Article 5. 
Pleadings in Certain Particular Cases. 



§ 10-673. How conditions precedent 

A condition precedent must be alleged in 
the complaint. — Complaint in judgment 
creditor's action against liability insurer, 
which alleged that insured at all times com- 
pletely and fully complied with and per- 
formed all of the terms and conditions of 
the policy, complied with requirements of 
this section. Brown v. State Farm Mutual 
Automobile L. Ins. Co., 233 S. C. 376, 104 
S. E. 2d 673 (1958). 

Plaintiff may show waiver under general 
allegation of compliance with conditions of 
contract. — Where judgment creditor's com- 
plaint alleged insured's compliance with 
terms and conditions of liability policy and 
insurer set up affirmative defense that there 
was no liability under policy because no 
written notice of accident given, there was 
no error under peculiar facts of this case in 
allowing plaintiff to show that insurer 
waived requirement of written notice by 
attaching to policy members identification 
card providing for the giving of oral notice 
by telephone, even though complaint did 

§ 10-676. Pleading libel and slander. 

Purpose of enactment of this section 
was to relieve pleader in libel cases from 
rigid technical rules controlling them, it 
having been necessary before its enact- 
ment to state extrinsic facts leading to con- 
clusion that defamatory matter was ap- 
plied to plaintiff when alleged libel did 
not specifically mention his name. Rogers 

§ 10-679. Pleading: when two or more acts of negligence, etc., alleged. 

''I. GENERAL CONSIDERATION. or contributed to the injury. Hopkins v. 

This section not intended to permit Shuman, 235 S. C. 191, 110 S. E. 2d 713 

jumbling of causes of action, but the (1959). 
jumbling of acts of negligence which caused 

211 



pleaded. 

not allege waiver. Brown v. State Farm 
Mutual Automobile L. Ins. Co., 233 S. C. 
376, 104 S. E. 2d 673 (1958). (Editor's 
note. — The rule announced in the case of 
Griffith v. Newell, 69 S. C. 300, 48 S. E. 
259 (1904), and reaffirmed in Hyder v. 
Metropolitan Life Ins. Co., 183 S. C. 98, 
190 S. E. 239 (1937), is that in an action on 
a contract evidence of waiver of a con- 
dition precedent is inadmissible unless the 
waiver is pleaded. The instant case seems 
to hold to the contrary without citing or 
referring to the above two cases, although 
the decision is made under "the peculiar 
facts in this case." It would seem that the 
same result could have been reached with- 
out considering waiver. The court in effect 
held that the members identification card 
became a part of the contract. Its provision 
as to giving notice was in conflict with that 
provision in the policy, and construing this 
conflict liberally in favor of the insured, his 
telephone notice of the accident complied 
with this condition precedent so construed.) 



v. Florence Printing Company, 230 S. C. 
304. 95 S. E. 2d 616 (1956). 

Plaintiff's name need not be mentioned 
in the writing to support action for a libel: 
it is sufficient that there is description of, 
or reference to. him by which he may be 
known. Nash v Sharper, 229 S. C. 451. 
93 S. E. 2d 457 (1956). 



§ 10-691 



Code of Laws of South Carolina 



§ 10-692 



Application of section to § 10-701. — In 
accord with paragraph under this catch- 
line in Code. See Hopkins v. Shuman, 
235 S. C. 191, 110 S. E. 2d 713 (1959). 

Not necessary that all acts of negligence 
alleged be proved. — Where complaint in 
action against railroad for wrongful death 
of automobile passenger alleged several 
joint and concurrent acts of negligence, 
plaintiff entitled to base recovery upon 
proof of any one or more of acts of negli- 
gence alleged. Johnson v. Charleston and 
Western Carolina Ry. Co., 234 S. C. 448, 
108 S, E. 2d 777 (1959V 



III. ALLEGATIONS NOT 
PERMISSIBLE UNDER SECTION. 

Section does not permit commingling 
of two causes of action. — Different causes 
of action must be stated separately in com- 
plaint so that defendant may plead to them 
separately if necessary or desirable. 
Hopkins v. Shuman, 235 S. C. 191, 110 
S. E. 2d 713 (1959). 

False imprisonment and interference 
with plaintiff's employment are separate 
acts or torts giving rise to two causes of 
action which should be separately stated. 
Hopkins v. Shuman, 235 S. C. 191, 110 
S. E. 2d 713 (1959). 



Article 6. 
Amendments and Variances. 



§ 10-691. Amendments of course and 

Cross references. — As to amendment of 
pleadings by master, see §§ 10-1406 and 
15-1815; referee, 10-1406. 

I. GENERAL CONSIDERATION 

This section not limited in its applica- 
tion by terms of § 10-692. — Doss v. Doug- 
lass Construction Company, 232 S. C. 261, 
101 S. E. 2d 661 (1958). 

Cited in Greenville Commun. H. Corp. 
v. Alexander Smith, Inc., 230 S. C. 239, 95 

§ 10-692. Amendment by the court. 

I. GENERAL CONSIDERATION. 

Section does not affect § 10-691. — In ac- 
cord with 2nd paragraph under this catch- 
line in Code. See Doss v. Douglass Con- 
struction Company, 232 S. C. 261, 101 S. E. 
2d 661 (1958). 

Meaning of term "amendment." — The 
term "amendment" by very definition con- 
notes alteration, improvement or correction, 
and thus negates idea of destruction or 
elimination of the original. Greenville Com- 
mun. H. Corp. v. Alexander Smith, Inc., 
230 S. C. 239, 95 S. E. 2d 262 (1956). 

Principles governing construction and 
application of this section. — 

1. Limitation of power of amendment 
under subdivision (d) to such as "does not 
change substantially the claim or defense" 
is applicable only to amendments proposed 
while court is hearing evidence, or after it 
has heard it. 

1. Power of court under subdivision (b) 
to allow amendment "correcting a mistake 
in the name of a party or a mistake in any 
other respect" extends to allowance of 
amendment, before trial, substantially 
changing plaintiff's claim, provided: (1) 
there is proof of bona fide mistake in set- 
ting forth cause of action, and (2) pro- 
posed amendment relates to same trans- 
action or tortious act as original com- 
plaint. Greenville Commun. H. Corp. v. 
Alexander Smith, Inc., 230 S. C. 239, 95 
S. E. 2d 262 (1956). 



after demurrer. 

S. E. 2d 262 (1956). 

II. AMENDMENTS AS OF COURSE. 

Plaintiff may amend as a matter of course 
to include new party defendant. Doss v. 
Douglass Construction Company, 232 S. C. 
261, 101 S. E. 2d 661 (1958). 

The right to amend as of course under 
this section applies to an answer. Mack 
v. Plowden, 217 S. C. 112, 60 S. E. 2d 
57 (1950). 



Liberal construction. — This section has 
received a very liberal interpretation by 
the courts of this State. De Loach v. 
Griggs, 222 S. C. 326, 72 S. E. 2d 647 
(1952). 

Liberality should be exercised with re- 
spect to the allowance of amendments. 
Johnson v. Abney Mills, 219 S. C. 231, 
64 S. E. 2d 641 (1951). 

Limitation of power of amendment in 
consonance with § 10-401. — Limitation 
upon power of amendment under sub-di- 
vision (b) is in consonance with require- 
ment of § 10-401 that civil actions in 
courts of record be commenced by service 
of summons. Greenville Commun. H. Corp. 
v. Alexander Smith. Inc., 230 S. C. 239, 
95 S. E. 2d 262 (1956). 

Applied in Shonnard v. South Carolina 
Public Service Authority, 217 S. C. 458, 
60 S. E. 2d 894 (1950). 

II. ALLOWANCE OF AMEND- 
MENTS. 
A. Discretion of the Court. 

Amendments are within discretion of 
the Court. 

In accord with 1st paragraph under this 
catchline in Code. See Vernon v. Atlantic 
Coast Line R. Co., 218 S. C. 402, 63 S. E. 
2d 53 (1951). 

Allowance of amendment under this 
section in furtherance of justice is ad- 
dressed to sound discretion of circuit judge 
and his action is not subject to review un- 
less there has been abuse of discretion. 



212 



§ 10-692 



1960 Cumulative Supplement 



§ 10-692 



Bank for Savings and Trusts v. Towe, 
231 S. C. 268, 99 S. E. 2d 539 (1957). 

Allowance of amendments to pleadings 
in furtherance of justice is addressed to 
sound discretion of circuit judge, and his 
action not subject to review unless there 
has been abuse of discretion. Charleston & 
Western Carolina Railway Co. v. Joyce, 
231 S. C. 493, 99 S. E. 2d 187 (1957). 

Allowance of amendment within discre- 
tion of trial judge. — Allowance of amend- 
ment during trial of case to conform plead- 
ing to facts proved, provided such amend- 
ment does not materially or substantially 
change claim or defense of party seeking 
such amendment, is proper and is a matter 
largely in discretion of trial judge. Wood 
v. Hardy, 235 S. C. 131, 110 S. E. 2d 157 
(1959). 

But this does not give trial judge an 
entirely free hand. — While a motion to 
amend under this section is addressed to 
the sound discretion of the trial court, this 
does not give the trial judge an entirely 
free hand in what might be termed dis- 
cretionary matters. Mack v. Plowden, 
217 S. C. 112, 60 S. E. 2d 57 (1950); El- 
rod v. Elrod, 230 S. C. 109, 94 S. E. 2d 
237 (1956). 

Where amendment is refused on legal 
grounds, etc. 

In accord with 1st paragraph under this 
catchline in Code. See Smith v. Traxler, 
224 S. C. 290, 78 S. E. 2d 630 (1953). 
B. Amendments before Trial. 

Limitation on power of court to allow 
amendment before trial. — Power of court 
under subdivision (b) to allow amendment 
"correcting a mistake in the name of a 
party or a mistake in any other respect" 
extends to allowance of amendment, be- 
fore trial, substantially changing plaintiff's 
claim, provided: (1) there is proof of bona 
fide mistake in setting forth cause of ac- 
tion, and (2) proposed amendment relates 
to same transaction or tortious act as orig- 
inal complaint. Greenville Commun. H. 
Corp. v. Alexander Smith, Inc., 230 S. C 
239. 95 S. E. 2d 262 (1956). 

And cause may be changed or new 
cause raised by amendment, etc. 

In accord with 1st paragraph under 
this catchline in Code. See Vernon v. 
Atlantic Coast Line R. Co., 218 S. C. 402, 
63 S. E. 2d 53 (1951). 

Our decisions are, almost without ex- 
ception, in accord with the modern the- 
ory of code pleading which permits 
amendments before trial, introducing a 
new cause of action or substantially 
changing the cause of action alleged. 
De Loach v. Griggs, 222 S. C. 326. 72 
S. E. 2d 647 (1952). 

The court will, as a matter of course, 
allow any party to shape his own plead- 
ings to suit himself, and, for this pur- 
pose, will permit him at any time before 
trial to amend his pleadings so as to pre- 



sent his own views on the question to be 
litigated, upon such terms as may be 
deemed equitable. There is no restric- 
tion on the power of the court to allow 
such amendments, even though their ef- 
fect be to change entirely the whole cause 
of action, or the grounds of defense. 
Vernon v. Atlantic Coast Line R. Co., 
218 S. C. 402, 63 S. E. 2d 53 (1951). 

But litigant may not set up new cause 
of action which is barred by statute of 
limitations. — The power of the court to 
allow amendments is subject to recog- 
nized limitations, among which is the rule 
that a litigant may not set up by amend- 
ment a wholly different cause of action — 
one which does not arise out of or con- 
nect itself in a material aspect with the 
transaction set out in the original com- 
plaint — when the cause of action at- 
tempted to be set up by the amendment 
is barred by the statute of limitations. 
De Loach v. Griggs, 222 S. C. 326, 72 S. 
E. 2d 647 (1952). 

An order requiring defendant to make 
his answer more definite and certain waa 
not a limitation upon his right to set up 
additional defenses in his amended an- 
swer. Mack v. Plowden, 217 S. C. 112, 60 
S. E. 2d 57 (1950). 

C. Amendments During and After Trial. 
Amendments are within discretion of 
the court, and, in action for goods sold and 
delivered against alleged partners, refusal of 
court to allow amendment of answer after 
close of plaintiff's case so as to deny part- 
nership, which would have substantially 
changed defense and interposed new de- 
fense, was not error nor abuse of court's 
discretion. Concrete Mix v. James, 231 S. C. 
416. 98 S. E. 2d 841 (1957). 

Amendment of Complaint to conform 
to the proof. — Amendment of complaint at 
close of plaintiff's case effected no sub- 
stantial change in plaintiff's claim, and was 
allowable under clause (d) of this section. 
Gary v. Tordan, 236 S. C. 144, 113 S. E. 
2d 730 (1960). 

ITT. ILLUSTRATIONS. 

A. Amendment Substantially Changing 

Claim or Defense. 

Amendment not pertaining to original 
cause of action. — Tn action for recovery of 
damages for alleged breach of warranty 
"•here proposed amendment sought before 
trial did not pertain to cause of action set 
out in complaint, but effected its elimina- 
tion and substitution of another whollv un- 
related cause of action in its stead, allow- 
ance of such amendment bevond power of 
the court. Greenville Commun. H. Corp. 
v. Alexander Smith. Inc., 230 S. C. 239, 
95 S. E. 2d 262 (1956V 

B. Amendment Not Substantially Chang- 
ing Claim or Defense. 

Pleading wrongful death statute of an- 
other ^tate — Tn an action hroueht in this 
State for the wrongful d<"ath of plaintiff's 
intestate in an automobile collision in 



213 



§ io-r,Q3 



Code of Laws of South Carolina 



§ 10-701 



North Carolina, plaintiff should have 
been allowed to amend her complaint so 
as to plead the North Carolina law gov- 
erning actions for wrongful death, even 
though the statute of limitations on such 
actions had run at the time the motion 
to amend was made, where the complaint 
alleged that the death occurred in North 
Carolina, and the motion to amend was 
made before trial. De Loach v. Griggs, 
222 S. C. 326, 72 S. E. 2d 647 (1952) 
distinguishing Sellers v. Lewis & Holmes 
Motor Freight Corp., 215 S. C. 256, 54 S 
E. 2d 806 (1949). 

§ 10-693. Material variances. 

III. APPLICATION OF SECTION. 

Proof that servant or agent committed 
tortious acts did not constitute variance. — 
Where complaint in trespass action charged 
delicts directly against principal or master, 
proof that tortious acts committed by serv- 
ant or agent did not constitute variance 



Alleging additional elements of dam- 
ages. — Plaintiff in an action for property 
damage and personal injuries was prop- 
erly allowed to amend his complaint by 
alleging additional elements of damage by 
way of medical expenses and loss of con- 
sortium, claimed by him as a result of the 
personal injuries suffered by his wife in 
the same accident, and by increasing his 
demand for judgment from $10,000.00 to 
$100,000.00. Vernon v. Atlantic Coast Line 
R. Co., 218 S. C. 402, 63 S. E. 2d 53 (1951). 



and evidence that wrong committed by 
agent or servant admissible to sustain re- 
covery in favor of plaintiff, where issue 
of whether agents or servants of defendants 
committed trespass squarely raised by 
pleadings. Hunter v. Hyder, 236 S. C. 378, 
114 S. E. 2d 493 (I960). 



CHAPTER 8. 
Joinder of Causes; Counterclaim and Set-Off; Cross Claims. 
§ 10-701. What causes of action may be joined. 

Cited in Ayers v. Guess, 217 S. C. 233, 



I. GENERAL CONSIDERATION. 

Causes of action must be separately 
stated. — This section authorizes joinder of 
specified causes of action in same com- 
plaint, but provides that they must be 
separately stated. Hopkins v. Shuman, 235 
S. C. 191, 110 S. E. 2d 713 (1959). 

Causes requiring different places of trial 
cannot be joined, even though they arise 
out of the same transaction or transactions 
connected with same subject of action. 
Irby v. Kidder. 226 S. C. 396, 85 S. E. 2d 
405 (1955). (Editor's note.— Majority of 
Court concurred in result only.) 

When consolidation may be ordered. — 
Only where parties are identical and causes 
of action such as may have been united in 
same complaint under this section may the 
court, in its discretion, order consolidation 
over objection of either party. McKinney v. 
Greenville Ice and Fuel Company, 232 S. C. 
257, 101 S. E. 2d 659 (1958). 

When consolidation may not be ordered. 
— Separate actions by driver and passenger 
of automobile against defendant for per- 
sonal injuries, although arising from same 
alleged tortious act, were separate, not 
joint, and they could not have been joined 
in same complaint under this section, and 
could not be consolidated over objection. 
McKinnev v. Greenville Ice and Fuel Com- 
pany, 232 S. C. 257, 101 S. E. 2d 659 (1958). 

Where parties not the same, several 
cases may by their consent, but not other- 
wise, be tried together for convenience. 
McKinnev v. Greenville Ice and Fuel Com- 
pany, 232" S. C. 257, 101 S. E. 2d 659 (1958). 



60 S. E. 2d 315 (1950). 

II. CAUSES OF ACTION WHICH 
MAY BE JOINED. 
A. Subdivision (1). 

Section is liberally construed. 

This section has been given very liberal 
interpretation by the courts of the State. 
South Carolina Elec. & Gas Co. v. Aetna 
Ins. Co., 114 F. Supp. 79 (1953). 

An action against thirty-eight insuranca 
companies to recover for a fire loss al- 
legedly covered by thirty-eight policies, 
one issued by each of the defendants, 
where the provisions of each policy are 
substantially identical and each policy pro- 
vides for pro rata liability, relates to the 
same subject matter, and to the same 
transaction, and the policies are so inter- 
twined and dependent that the alleged 
breach constitutes one indivisible wrong 
for which complete relief can be had only 
in one action against all thirty-eight de- 
fendants. South Carolina Elec. & Gas 
Co. v. Aetna Ins. Co., 114 F. Supp. 79 
(1953). 

Cause of action for ejectment and cause 
of action for recovery of rent due may be 
united in same complaint. Atty. Gen. Off. 
Op. No. 667, Mar. 9, 1960. 
V. NECESSITY THAT ALL PARTIES 
BE AFFECTED. 

In order to authorize joinder causes must 
affect different defendants in such manner 
as to create a joint or common liability 
or defendants must have joint or common 
interest. Clarke v. City of Greer, 231 S. C. 
327. 98 S. E. 2d 751 (1957). 



214 



§ 10-702 



1960 Cumulative Supplement 



§ 10-705 



Misjoinder. — Cause of action against and reckless acts, seeking both actual and 

municipality for unlawful entry upon and punitive damages, may not be united in 

taking plaintiff's land seeking actual dam- same complaint. Clarke v. City of Greer, 

ages, and one against contractor for tres- 231 S. C. 327, 98 S. E. 2d 751 (1957). 
pass and its high-handed, heedless, wanton 

§ 10-702. Joinder of principal and surety. 



Insurer may be joined as defendant un- 
der section. — In accord with paragraph un- 
der this catchline in Code. See Dobson v. 
American Indemnity Co., 227 S. C. 307, 
87 S. E. 2d 869 (1955); Watts v. Baker, 233 
S. C. 446, 105 S. E. 2d 605 (1958). 

Plaintiff's insurer may be joined for 
pnrpoBeB of counterclaim and cross ac- 
tion. — An injured party defendant has a 
right to bring into the action as new par- 
ties plaintiff's automobile, by which de- 
fendant allegedly was injured, and the 
carrier of insurance on such automobile, 
which was operated as a taxicab and in- 
sured as required by law, so that he may 
file a counterclaim and cross action against 
the added defendants. Brown v. Quinn, 
220 S. C. 426, 68 S. E. 2d 326 (1951). 

§ 10-703. What counterclaims may be 

I. GENERAL CONSIDERATION. 

The requirements of this section and 
§ 10-705 are essentially the same. — "Trans- 
action" is appropriate for describing cir- 
cumstances giving rise to cause of action 
upon contract, as "arising out of the same 
state of facts" is in referring to action in 
tort. Gause v. Jones, 226 S. C. 390. 85 S. 
E. 2d 402 (1955). 

Set off must be such that separate action 
could be maintained. — Where defendant's 
cause of action had not accrued at time of 
commencement of action and therefore it 
could not have maintained a separate ac- 



Insurer may not be joined as defendant 
unless statutory provisions require Lability 
to person injured. — Where city ordinance 
required filing of insurance policy before is- 
suance of license for operation of taxicab 
stipulation that injured person who may re- 
cover final judgment for damages against 
owner of taxicab, such judgment remaining 
unpaid for thirty days, shall have right of 
action on policy, person injured may not 
join insurer as defendant in action against 
owner of taxicab for personal injuries. 
Watts v. Baker, 233 S. C. 446, 105 S. E. 2d 
605 (1958). 

Cited in Leppard v. Jordan's Truck 
Line, 110 F. Supp. 811 (1953). 



pleaded. 

tion thereon, its attempted set off based 
thereon was subject to demurrer. Brock v. 
Mason, 233 S. C. 40, 103 S. E. 2d 423 
(1958). 

Recoupment distinguished from counter- 
claim and set-off. — Recoupment, unlike 
counterclaim, may result only in reduction 
of plaintiff's claim and not in affirmative 
money judgment for any excess over that 
claim; and unlike set-off, it must grow out 
of identical transaction which gave rise to 
plaintiff's cause of action. Mullins Hospital 
v. Squires 233 S. C. 186, 104 S. E. 2d 161 
(195S). 



§ 10-705. Pleading counterclaim in 

Test of permissible counterclaim. — The 
true test would seem to be whether or not 
the acts complained of in the counterclaim 
are so connected with those upon which 
the complaint is founded that it can be 
said the counterclaim is based upon denial 
of issues raised by complaint. Gause v. 
Jones, 226 S. C. 390, 85 S. E. 2d 402 
(1955). 

The requirements of this section and 
§ 10-703 are essentially the same. — "Trans- 
action" is appropriate for describing cir- 
cumstances giving rise to cause of action 
upon contract, as "arising out of the same 
state of facts" is in referring to action in 
tort. Gause v. Jones, 226 S. C. 390, 85 S. 
E. 2d 402 (1955). 

Counterclaim for libel in action for fraud 
and deceit proper, as both claims arose out 
of same state of facts where in an action 
against insurance company and its agent 
for fraud and deceit in selling hospital 



tort. 



policy, agent claimed that plaintiff, through 
his attorney, wrote insurance company that 
agent fraudulently withheld information 
and misrepresented facts, even though pub- 
lication of alleged libel occurred some time 
after acts upon which complaint is based. 
Gause v. Jones, 226 S. C. 390. 85 S. E. 2d 
402 (1955). 

If allegations of fraud and deceit in com- 
plaint be proven false by defendant, and if 
circumstances alleged in counterclaim give 
rise to similar cause of action on same 
state of facts in favor of defendant, then 
the two causes of action necessarily arise 
out of same state of facts or the same 
transaction. Gause v. Jones, 226 S. C .390, 
85 S. E. 2d 402 (1955). 

Defendant in tort action may interplead 
plaintiff's alleged joint tort-feasor in a 
counterclaim. Johns v. Castles, 229 S. C. 
51, 91 S. E. 2d 721 (1956). 



215 



§ 10-706 



Code of Laws of South Carolina 



§ 10-901 



§ 10-706. Set-off in case of assignment of thing in action. 

And this principle may be thus illus- Clanton v. Clanton, 229 S. C. 356, 92 S. E. 
trated.— Under this catchline in Code, add: 2d 878 (1956). 

§ 10-707. Cross actions between codefendants. 



It is not the purpose of a cross action 
or a cross complaint to introduce new 
matters which are outside the original con- 
troversy. This is not permitted. The re- 
lief sought must in general relate to or 
depend upon the contract or transaction 
on which the action is brought. Brown 
v. Quinn, 220 S. C. 426, 68 S. E. 2d 326 
(1951). 

Bringing in new parties defendant for 
purposes of cross action. — An injured 
party defendant has a right to bring into 
the action as new parties plaintiff's au- 



tomobile, by which defendant allegedly 
was injured, and the carrier of insurance 
on such automobile, which was operated 
as a taxicab and insured as required by 
law, so that he may tile a counterclaim 
and cross action against the added de- 
fendants. Brown v. Quinn, 220 S. C. 426, 
68 S. E. 2d 326 (1951). 

Quoted in McKinney v. Greenville Ice 
and Fuel Company, 232 S. C. 257, 101 S. E. 
2d 659 (19S8). 

Cited in Taylor v. Cecil's Incorporated, 
229 S. C. 182, 92 S. E. 2d 268 (1956). 



CHAPTER 9. 
Arrest and Bail in Civil Actions 

Article 1. 
Arrest. 
§ 10-802. Arrest in civil actions permitted in certain cases. 



I. GENERAL CONSIDERATION. 

Statute must be strictly complied with. — 
It is elementary that statutes authorizing 
arrest in civil actions and execution against 
the person must be strictly followed when 
invoked. Ramantanin v. Miller, 225 S. C. 
77, 80 S. E. 2d 925 (1954). 

And strictly construed. — Statutes au- 
thorizing arrest in civil actions and ex- 
ecution against the person must be strictly 
followed and construed when invoked. Ba- 
ker Wholesale Company v. Fleming, 227 
S. C. 312, 87 S. E. 2d 876 (1955). 

Mere statement in complaint of a stat- 
utory ground of arrest upon belief of af- 
fiant is insufficient to support an order of 
arrest, it being necessary to allege facts 
or circumstances in support of the belief. 
Baker Wholesale Company v. Fleming, 
227 S. C. 312, 87 S. E. 2d 876 (1955). 

Allegations of complaint, where arrest 
is sought, should be sufficiently specific so 
as to give defendant notice that be must be 
prepared to contest with plaintiff facts in- 
volving right of arrest as well as alleged 



indebtedness. Baker Wholesale Company v. 
Fleming, 227 S. C. 312, 87 S. E. 2d 876 
(1955). 

II. SUBDIVISION (1). 

Agent converting trust funds. — Allega- 
tions that defendant was entrusted with 
plaintiff's funds for specific purpose of 
making certain purchases, which he prom- 
ised to do, but instead converted and 
appropriated the trust funds to his own 
use, clearly brought him within terms of 
this subdivision as an "agent, broker or 
other person in a fiduciary capacity." Ba- 
ker Wholesale Company v. Fleming, 227 
S. C. 312, 87 S. E. 2d 876 (1955). 
V. SUBDIVISION (6). 

Action not within statute. — Issuance of 
execution against person of judgment 
debtor could not be made where it appeared 
that the action was not for injury to prop- 
erty and record contained no complaint 
otherwise complying with section 10-1705. 
Ramantanin v. Miller, 225 S. C. 77, 80 
S. E. 2d 925 (1954). 



CHAPTER 10. 

Attachment. 



Article 2. 
Service and Subsequent Proceedings. 



Sec. 



10-932.1. Motion by owner to discharge 
attachment. 
Article 1. 

Issue of Attachments. 

§ 10-901. Grounds for attachment generally. 

I. GENERAL CONSIDERATION. remedy and exists only by reason of the 

Remedy is statutory and strictly con- statute providing for same, and the courts 

■trued. — Attachment is an extraordinary have held almost without exception that 

216 



§ 10-902 1960 Cumulative Supplement § 10-923 

the provisions of such statutes must be II. NATURE OF ATTACHMENT 

strictly construed. Glenn v. One 1946 AND WHEN ISSUED. 

Tudor Ford, 222 S. C. 13, 71 S. E. 2d An action must be commenced in reg- 

507 (1952); Brewer v. Graydon, 233 S. C. ular form before attachment is available. 

124, 103 S. E. 2d 767 (1958). In accord with paragraph under this 

Where lien not created by statute, pur- catchline in Code. See Plowden v. Mack, 

pose of attachment is to obtain security for 217 S. C. 226, 60 S. E. 2d 311 (1950). 

a debt by securing lien on property, and Attachment will not be granted in ac- 

when bond is filed for release of attached tions for alienation of affections or criminal 

property, bond is substituted for lien. conversation. Brewer v. Graydon, 233 S. C. 

Stephenson Finance Co. v. Burgess, 225 124, 103 S. E. 2d 767 (1958). 

S. C. 347, S2 S. E. 2d 512 (1954). IV. PROPERTY SUBJECT TO 

Applied in Southeastern Equip. Co. v. ATTACHMENT. 

One 1954 Autocar D. Tractor, 234 S. C. 213, Cross reference.— See note to § 10-923, 

107 S. E. 2d 340 (1959). analysis line II. 

§ 10-902. Attachment in libel and slander against nonresidents or foreign 
corporations. 

This section permits attachment in libel Graydon, 233 S. C. 124, 103 S. E. 2d 767 

and slander actions, thereby broadening the (1958). 
field in which attachments lie. Brewer v. 

§ 10-908. Minimum bond required before obtaining attachment. 

III. LIABILITY ON WRITTEN successfully moving to dissolve attachment. 

UNDERTAKING. Knighton v. Bramlett, 226 S. C. 133, 83 

Defendant is entitled to recover at- S. E. 2d 753 (1954). 

torney's fees as proper element of damages And demand for attorney's fees need no* 

in action on bond given in attachment, be made at time of motion for dissolution 

where attachment was dissolved on motion of attachment, but may be recovered sub- 

of counsel for defendant, notwithstanding sequently in suit on the bond for services 

plaintiff's subsequent recovery in trial on rendered in effecting dissolution. Knighton 

merits, keeping in mind that claim for at- v. Bramlett, 226 S. C. 133, 83 S. E. 2d 753 

torney's fees does not arise out of defend- (1954). 
ing main suit but rather for appearing and 

§ 10-911. To whom attachment directed and what to require. 

Only an authorized officer may execute constable in magistrate court cases. Atty. 

a warrant of attachment, and this section Gen. Op. Aug. 24, 1957. 

would seem to mean that warrant directed Applied in Glenn v. One 1946 Tudor 

to sheriff in cases within jurisdiction of Ford, 222 S. C. 13, 71 S. E. 2d 507 (1952). 
court of common pleas and to magistrate's 

Article 2. 
Service and Subsequent Proceedings. 

§ 10-921. Service and answer. 

Only an authorized officer may execute tachment directed to sheriffs and consta- 

a warrant of attachment. — Glenn v. One bles of the State and of York County. 

1946 Tudor Ford, 222 S. C. 13, 71 S. E. Such service was improper and should 

2d 507 (1952). be set aside. Glenn v. One 1946 Tu- 

A rural policeman of York County dor Ford, 222 S. C. 13, 71 S. E. 2d 507 

had no authority to serve a warrant of at- (1952). 

§ 10-922. Property subject to attachment. 

Cross reference. — See note to § 10-923, 
analysis line II. 

§ 10923. Duty of officer to whom warrant delivered. 

II. PROPERTY SUBJECT TO had at time of attachment. Charles R. 

ATTACHMENT. Allen, Inc. v. Island Co-op. Serv. Coop. 

All property of debtor, legal or equi- Ass'n. 234 S. C. 537, 109 S. E. 2d 446 

table, subject to attachment. Charles R. (1959). 

Allen, Inc. v. Rhode Island Ins. Co., 217 Any interest of debtor in proceeds of 

S. C. 296. 60 S. E. 2d 609 (1950). draft subject to attachment. Charles R. 

Attaching creditor can acquire no greater Allen, Inc. v. Island Co-op. Serv. Coop, 
right in attached property than defendant 

217 



§ 10-929 



Code of Laws of South Carolina 



§ 10-1057 



Ass'n, 234 S. C. 537, 109 S. E. 2d 446 
(1959;. 

The interest of the debtor subject to 
attachment includes any indebtedness ow- 
ing to him by a third party. Charles R. 
Allen, Inc. v. Rhode Island Ins. Co., 217 
S. C. 296, 60 S. E. 2d 609 (1950). 



An unadjusted claim for loss under • 
policy of insurance is subject to attach- 
ment or garnishment in the hands of the 
insurance company. This is true even 
though the insurance company denies any 
indebtedness to the insured. Charles R. 
Allen, Inc. v. Rhode Island Ins. Co., 217 
S. C. 296, 60 S. E 2d 609 (1950). 



§ 10-929. Proceedings on claim of third person. 



Issue to be tried by taking testimony. — 
This section clearly contemplates that issue 
framed by court shall be tried in the ordi- 
nary manner by the taking of testimony; 
and while the question of whether a jury 
trial may be had as a matter of right is 
left undecided, it is ordinarily very unsatis- 
factory to undertake to determine title or 
ownership of property by affidavits, and 
this mode of trying an issue framed under 
this section cannot be followed without 
consent of parties. Charles R. Allen, Inc. v. 



Island Co-op. Serv. Co-op. Ass'n, 229 S. C. 
313, 92 S. E. 2d 851 (1956). 

Motion of defendant to set aside service 
for lack of jurisdiction on ground of no in- 
terest in attached property, should be de- 
ferred until intervener's substantial claim 
of ownership is determined. Charles R. 
Allen, Inc. v. Island Co-op. Serv. Co-op. 
Ass'n, 229 S. C. 313, 92 S. E. 2d 851 (1956). 

Applied in Charles R. Allen, Inc. v. 
Island Co-op. Serv. Coop. Ass'n, 234 S. C. 
537, 109 S. E. 2d 446 (1959). 



§ 10-931. Undertaking on part of defendant. 



II. BOND ON APPLICATION TO 
DISCHARGE ATTACHMENT. 

Bond substituted for lien. — Where lien 
not created by statute, purpose of attach- 
ment is to obtain security for a debt by 
securing lien on property, and when bond 
is filed for release of attached property, 
bond is substituted for lien. Stephenson 
Finance Co. v. Burgess, 225 S. C. 347, 82 
S. E. 2d 512 (1954). 



III. MOTION TO DISCHARGE 

ATTACHMENT. 
Waiver of irregularities in attachment. — 
Substitution of security was an implied 
acknowledgment of validity of attachment, 
and subsequent motion to dissolve the at- 
tachment for alleged defect in affidavit was 
too late, and sufficiency of affidavit need not 
be examined. Southeastern Equip. Co. v. 
One 1954 Autocar D. Tractor, 234 S. C. 213, 
107 S. E. 2d 340 (1959). 



§ 10-932.1. Motion by owner to discharge attachment. 

In all cases the defendant or any person who establishes a right to the property 
attached may move to discharge the attachment. 

1942 Code § 544; 1932 Code § 544; Civ. P. '22 § 517; Civ. P. '12 § 296; Civ. P. "02 
§ 263; 1870 (14) § 265; 1960 (51) 1750. 

Effect of amendment. — The 1960 amend- discharge be as in the case of other 

ment eliminated provision that motion to provisional remedies. 



CHAPTER 12. 
Issues and Modes of Trial. 
§ 10-1056. How issues of law and fact tried. 



I. GENERAL CONSIDERATION. 

Applied in Morris v. Lambert, 218 S. 
C. 384, 62 S. E. 2d 841 (1950). 

Cited in Center v. Vaughan, 217 S. C. 
31, 59 S. E. 2d 491 (1950). 



§ 10-1057. Issues out of chancery. 

Cross reference. — See § 10-1457. 

Jury trial discretionary in equity actions. 
— In accord with this catchline in Code. 
See Allen Brothers Milling Company v. 
Adams, 233 S. C. 416, 105 S. E. 2d 257 
(1958). 

Refusal to frame issues under this sec- 
tion within discretion of court. Greenwood 



IV. CASES REQUIRING TRIAL BY 
JURY. 
Action for recovery of specific sum of 
money triable by jury on law side of court 
under this section. Clelland v. Lanham 
236 S. C. 351, 114 S. E. 2d 328 (1960). 



Lumber Co. v. Cromer, 225 S. C. 375, 82 
S. E. 2d 527 (1954); Allen Brothers Milling 
Company v. Adams, 233 S. C. 416, 105 
S. E. 2d 257 (1958). 

Findings on issues submitted to jury 
under this section are conclusive under § 
10-1457. Greenwood Lumber Co. v. Cromer, 
225 S. C. 375, 82 S. E. 2d 527 (1954). 



218 



§ 10-1058 



1960 Cumulative Supplement 



10-1210 



Cited in Standard Warehouse Co. v. At- 
lantic Coast Line R. Co., 222 S. C. 93, 
71 S. E. 2d 893 (1952). 

§ 10-1058. Issues triable by court. 

I. GENERAL CONSIDERATION. 
Cited in Standard Warehouse Co. v. At- 



lantic Coast Line R. Co., 
71 S. E. 2d 893 (1952). 



222 S. C. 93, 



CHAPTER 14. 
Trial and Certain Incidents Thereof. 



Article 1. 
General Provisions. 
Sec. 
10-1210. Court to give opportunity to ob- 



ject to charge or request addi- 
tional charge out of presence of 
jury. 



Article 1. 

General Provisions. 

§ 10-1210. Court to give opportunity to object to charge or request additional 
charge out of presence of jury. 

In all cases tried before a jury, other than cases in a magistrate's or municipal 
court, after the court has delivered to the jury a charge on the law in the case 
the court shall temporarily excuse the jury from the presence of counsel and liti- 
gants in order to give counsel and litigants an opportunity to express objections 
to the charge or request the charge of additional propositions made necessary by 
the charge, out of the presence of the jury. 

1953 (48) 28. 



Purpose of this section is to afford to 
counsel and litigants opportunity to dis- 
cuss charge freely with trial judge, to indi- 
cate wherein he may have erred in his in- 
structions, and to request such further in- 
structions as might be necessary. State v. 
Jones, 228 S. C. 484, 91 S. E. 2d 1 (1956). 

This section increases the responsibility 
of trial counsel as to the correctness and 
sufficiency of the charge to the jury. Munn 
v. Asseff, 226 S. C. 54, 83 S. E. 2d 642 
(1954). 

Failure to object or request additional 
instructions constitutes waiver of any right 
to a fuller charge. State v. Hollman, 232 
S. C. 489, 102 S. E. 2d 873 (1958); Johnson 
v. Charleston and Western Carolina Ry. 
Co.. 234 S. C. 448, 108 S. E. 2d 777 (1959). 

Failure to object to charge renders ques- 
tions concerning it unavailable on appeal. 
Richardson v. Register, 227 S. C. 81, 87 
S. E. 2d 40 (1955); State v. Anderson, 229 
S. C. 403, 93 S. E. 2d 210 (1956); State v. 
Campbell. 230 S. C. 432, 96 S. E. 2d 476 
(1957); Tate v. LeMaster, 231 S. C. 429, 99 
S. E. 2d 39 (1957); Rogers v. Florence 
Printing Company, 233 S. C. 567, 106 S. E. 
2d 258 (1958); G. A. C. Finance Corp. v. 
Citizens & Southern Nat. Bank, 234 S. C. 
205, 107 S. E. 2d 315 (1959); State v. 
Collins, 235 S. C. 110, 65 S. E. 2d 270 
(19591. 

Failure to object to charge and to re- 
quest amplification of it renders question 
concerning it unavailable on appeal. Ma- 



haffey v. Mahaffey, 236 S. C. 64, 113 S. E. 
2d 72 (1960). 

Failure to object to charge. — Even if 
additional instructions were a charge on the 
facts in violation of Art. 5, § 26, of the Con- 
stitution, substantially same instructions 
were given in main charge, and counsel 
having failed to make timely objection when 
jury was excused at conclusion of main 
charge, the objection to the additional in- 
structions was waived. Lundy v. Lititz 
Mutual Insurance Company, 232 S. C. 1 
100 S. E. 2d 544 (1957). 

But where contested issue of law has 
been argued during course of trial and 
ruled upon by trial judge, this section does 
not require objection to be made at con- 
clusion of charge to that portion of it deal- 
ing with same issue in accordance with 
previous ruling. Smith v. City of Green- 
ville, 229 S. C. 252, 92 S. E 2d 639 (1956); 
Carter v. Peace, 229 S. C. 346, 93 S. E. 
2d 113 (1956). 

Nor does this rule apply where death 
penalty involved. — In prosecution resulting 
in rle^lh penalty, where trial judge failed 
to charge that defendant's failure to testify 
should not be considered against him and 
that no inference of guilt should be im- 
plied therefrom, it was of no consequence 
that defense counsel did not request such 
charge or object to its omission. State v. 
Fuller, 227 S. C. 138, 87 S. E. 2d 287 
(1955). 



>19 



Volume 1 



§ 10-1213 



Code of Laws of South Carolina 



§ 10-1213 



This section not applicable to refusal of 
trial judge to charge requested proposition 
of law. — Where a party requested certain 
proposition of law be charged, and after 
opportunity for discussion trial judge de- 
clined to do so, it was not necessary that 
objection to such ruling be made at con- 
clusion of the charge in order to preserve 
the point on appeal. Rogers v. Florence 
Printing Company, 233 S. C. 567, 106 S. E. 
2d 258 (1958). 

Only one opportunity required. — Neither 
expressly nor by necessary implication does 
this section require more than one oppor- 
tunity for objections and requests, it being 
sufficiently compiled with where such op- 
,inniiiity has been afforded at conclusion 
of main charge; and failure of trial judge 
to excuse jury for purposes of this section, 
alter giving additional instructions at re- 
quest of counsel, was not violative of this 
section. State v. Jones, 228 S. C. 484, 91 
S. E. 2d 1 (1956). 

It is incumbent upon counsel to object to 
charge, which submitted to jury two 
theories of liability, in order to save point 



§ 10-1213. Relief from mistake, etc. ; 

Cross reference. — See note to § 10-609. 
In Morgan v. State Farm Mutual Insur- 
ance Company, 229 S. C. 44, 91 S. E. 
2d 723 (1956); Simon v. Flowers, 231 
S. C. 545, 99 S. E. 2d 391 (1957), and 
Holliday v. Holliday, 235 S. C. 246, 111 
S. E. 2d 205 (1959), the court said that 
same principles govern its review of circuit 
court orders under § 10-609 as under this 
section. 

I. GENERAL CONSIDERATION. 

And section must be strictly followed. 
— In accord with paragraph under this 
catchline in Code. See Weathers v. Gary, 
228 S. C. 105, 88 S. E. 2d 871 (1955). 

And remedy provided by section is ex- 
clusive. — In accord with paragraph under 
this catchline in Code. See Brock v. Brock, 
225 S. C. 261, 81 S. E. 2d 898 (1954). 

A judgment by default is not favored in 
divorce suits and will be set aside more 
readily than default judgments in other 
actions. Grant v. Grant, 233 S. C. 433, 105 
S. E. 2d 523 (1958); Holliday v. Holliday, 
235 S. C. 246, 111 S. E. 2d 205 (1959). 

Applied in Johnson v. Baldwin, 221 S. 
C. 141. 69 S. E. 2d 585 (1952). 

Stated in Davis v. Davis, 236 S. C. 277, 
113 S. E. 2d 819 (I960). 

Cited in Pee Dee Farms Corporation 
v. Johnson, 227 S. C. 396, 88 S. E. 2d 254 
(1955); Morgan \. State Farm Mutual In- 
surance Company, 229 S. C. 44, 91 S. E. 
2d 723 (1956). 
II. GROUNDS FOR MOTION FOR 
RELIEF FROM JUDGMENT. 

Grounds to be shown in order to vacate 
judgment. — In accord with paragraph un- 



for appeal. Hall v. Walters, 226 S. C. 430, 
85 S. E. 2d 729 (1955). 

Defendant bound by charge where he 
failed to object to erroneous charge that 
court had authority to suspend sentence and 
place defendant on probation. State v. Shea, 
226 S. C. 501, 85 S. E. 2d 858 (1955). 

Defendant bound by charge where he 
failed to object to charge allegedly misstat- 
ing the issues. Van Dolson v. Earles, 234 
S. C. 593, 109 S. E. 2d 456 (1959). 

Defendant bound by charge where he 
failed to object. — In murder prosecution, 
defendant having failed to request court 
to exclude voluntary manslaughter from 
charge although given opportunity to do 
so, could not complain on appeal that trial 
court charged elements of manslaughter. 
State v. Allen, 231 S. C. 391, 98 S. E. 2d 
826 (1957). 

Applied in Jackson v. Solomon, 228 S. C. 
225, 89 S. E. 2d 436 (1955); Green v. Bolen, 
S. C. , 115 S. E. 2d 667 (1960). 

Cited in Nelson v. Charleston & Western 
Carolina Railway Co., 226 S. C. 516, 86 
S. E. 2d 56 (1955); Turner v. Carey, 227 
S. C. 298, 87 S. E. 2d 871 (1955). 

amendments. 

der this catchline in Code. See Marthers v. 
Hurst, 226 S. C. 621, 86 S. E. 2d 581 (1955). 

Prerequisite for relief from default judg- 
ment is prima facie showing of meritorious 
defense, and in absence of such showing 
grounds for vacating judgment need not 
be considered. Royal-Liverpool Insurance 
Group v. McCarthy, 229 S. C. 72, 91 S. E. 
2d 881 (1956). 
III. DISCRETION OF COURT ON 
MOTION FOR RELIEF FROM 
JUDGMENT. 

Whose ruling thereon not disturbed, etc. 
— In accord with 1st paragraph under this 
catchline in Code. See Marthers v. Hurst, 
226 S. C. 621, 86 S. E. 2d 581 (1955); Grant 
v. Grant, 233 S. C. 433, 105 S. E. 2d 523 
(1958); Strickland v. Rabon, 234 S. C. 218, 
107 S.E. 2d 344 (1959). 

Relief under this section within discre- 
tion of judge. — Relief from default on ac- 
count of mistake, inadvertence, surprise or 
excusable neglect is within discretion of the 
court, and the exercise of which will not 
be disturbed on appeal in the absence of 
abuse or error of law. Royal-Liverpool In- 
surance Group v. McCarthy, 229 S. C. 72, 
91 S. E. 2d 881 (1956). 

Discretion not abused where neglect 
shown but no excuse for it. Ex Parte 
Wessinger, 235 S. C. 239, 111 S. E. 2d 
13 (1959). 

Illustrative cases in which discretion of 
judge held not abused. — Trial court did not 
abuse its discretion in refusing to vacate 
default judgment of divorce where no mo- 
tion was made to seek relief from husband's 
default judgment of divorce until almost 6 



220 



8 10-1215 



1960 Cumulative Supplement 



§ 10-1215 



months after wife's counsel learned of such 
judgment, there was no satisfactory expla- 
nation of this delay, and in the meantime 
husband remarried and rights of second 
spouse intervened. Grant v. Grant, 233 S. C. 
433, 105 S. E. 2d S23 (1958). (Editor's note. 
— In a footnote the court commented that 
no question was raised in this case as to 
necessity of making second spouse a party 
to this proceeding or whether she was en- 
titled to notice of same, and invited at- 
tention to Annotation 12 A. L. R. 2d page 
171.) 
V. TIME LIMITATION ON MOTION 

FOR RELIEF FROM JUDGMENT. 

Default judgment could not be set aside 
on motion made more than year after 
judgment entered, knowledge of the judg- 
ment being imputed to defendant when it 
was enrolled. Weathers v. Gary, 228 S. C. 
105. 88 S. E. 2d 871 (1955). 

And relief must be sought within one 
year after notice of judgment. — In accord 
with paragraph under this catchline in 
Code. See Antrum v. Hartsville Produc- 
tion Credit Association, 228 S. C. 201, 89 
S. E. 2d 376 (1955). 

Party seeking to set aside divorce de- 
cree may be barred by laches where he does 
not act diligently in seeking relief and in- 
nocent third parties have acquired rights by 
and through marriage in meantime; but re- 
marriage of spouse who obtained divorce 

§ 10-1215. New trials. 

Cross reference. — For similar section as 
to criminal trials, see § 17-514. For treat- 
ment of subject of granting new trials for 
insufficient eivdence or for excessive dam- 
ages, see note to § 10-1461. 

I. GENERAL CONSIDERATION. 

Circuit court's power said to be inher- 
ent 

In accord with paragraph under this 

catchline in Code. See Fallon v. Rucks, 

217 S. C. 180, 60 S. E. 2d 88 (1950). 

III. CORRECTION, M ODIFICATION, 

OR INTERFERENCE WITH 

JURY VERDICT. 

Improper to grant new trial of the issue 
of damages only. South Carolina Elec. & 
Gas Co. v. Aetna Insurance Co., 233 S. C. 
557. 106 S. E. 2d 276 (1958). 

It was error to grant a new trial on 
the ground of objection to the verdict's 
form before it was amended by the jury 
upon resubmission bv consent. Fallon 
v. Rucks, 217 S. C. 180, 60 S. E. 2d 88 
(1950). 

IV. MOTION FOR NEW TRIAL. 

But no specific time is provided. 

In accord with paragraph under this 
catchline in Code. See Smith v. Quattle- 
baum, 223 S. C. 384, 76 S. E. 2d 154 (1953). 

When motion may be made after ad- 
journment sine die. — Generally, when a 
trial judge adjourns his court sine die, 



is not of itself sufficient reason for denying 
relief to other spouse under this section, 
although it is important factor to be taken 
into consideration, the weight to be given it 
depending upon circumstances of the par- 
ticular case. Grant v. Grant, 233 S. C. 433, 
105 S. E. 2d 523 (1958). 

VII. ILLUSTRATIONS OF 
APPLICATION OF SECTION. 

B. Grounds Insufficient for Granting Re- 
lief. 

Court below, in setting aside and va- 
cating default divorce judgment, abused its 
discretion and thereby committed error of 
law, where showing made was insufficient 
to meet requirements of this section, it 
appearing that husband disregarded all pro- 
ceedings and treated them with contempt, 
and nothing was done which could have 
misled him. Brock v. Brock, 225 S. C. 261, 
81 S. E. 2d 898 (1954). 

Relief not granted where excusable neg- 
lect not shown. — Where defendant's insurer 
received summons and complaint 7 days 
before expiration of time to answer or 
apply for extension of time and did neither, 
and no satisfactory explanation appeared 
for failure to do so, trial judge did not 
abuse his discretion in holding that there 
was no showing of excusable neglect. Wil- 
liams v. Ray, 232 S. C. 373, 102 S. E. 2d 
368 (1958). 



he loses jurisdiction of a case finally de- 
termined during that term, except under 
special circumstances. An exception to 
this general rule is a motion for new 
trial on after- or newly-discovered evi- 
dence, based upon the broad principles of 
the furtherance of justice. And there is 
no sound reason why a motion for new 
trial on after-discovered disqualification of 
a juror, alleged as such, should not be 
within the same category. Smith v. Quat- 
tlebaum, 223 S. C. 384, 76 S. E. 2d 154 
(1953). 

Motion for new trial addressed to sound 
discretion of judge hearing it, whose refusal 
to grant such motion will not be interfered 
with by Supreme Court unless abuse of 
discretion is shown amounting to error of 
law. Evatt v. Campbell, 234 S. C. 1, 106 
S. E. 2d 447 (1959). 

VI. MISCELLANEOUS APPLICA- 
TIONS OF SECTION. 

Denial of motion for new trial on 
ground of after-discovered disqualification 
of juror held not error. Smith v. Quattle- 
baum. 223 S. C. 384. 76 S. E. 2d 154 (1953). 

Denial of motion for new trial on ground 
of after-discovered evidence was proper 
where evidence was merely impeaching. 
Evatt v. Campbell, 234 S. C. 1, 106 S. E. 2d 
447 (1959). 



221 



§ 10-1227 Code of Laws ok South Carolina § 10-1402 

Article 2. 
Motions and Orders. 

§ 10-1227. Notice of motion. 

Applied, as to notice of motion to dis- 
miss appeal, in State v. Cottingham, 224 
S. C. 181, 77 S. E. 2d 897 (1953). 

CHAPTER 15. 
Legal Notices Generally. 

Sec. 

10-1307. Certain probate notices or citations 
not to be published. 

§ 10-1304. Equivalent of publication for two weeks or fifteen days. 

This section was intended to clarify § on a proposed amendment to a zoning or- 

10-1306, relating to judicial sales of real dinance under § 47-1004. Central Realty 

and personal property, and does not ap- Corp. v. Allison, 218 S. C. 435, 63 S. E\ 

ply to publication of notice of a hearing 2d 153 (1951). 

§ 10-1306. Length of time legal sales shall be advertised. 

Cited in Central Realty Corp. v. Alli- 
son, 218 S. C. 435, 63 S. E. 2d 153 (1951). 

§ 10-1307. Certain probate notices or citations not to be published. 

It shall not be necessary to publish in any newspaper any notice or citation re- 
lating to any estate in the courts of probate when the value of such estate does 
not exceed five hundred dollars. In such cases the notices required by law shall be 
posted for the time required by law at the door of the courthouse of the county 
in which the probate proceeding is filed. 

1942 Code § 212; 1932 Code § 212; Civ. P. '22 § 170; Civ. P. '12 § 46; 1911 (27) 135; 
1933 (38) 493; 1960 (51) 1748. 

Effect of amendment. — Tbe 1960 amend- county where probate proceedings filed 
ment required posting of notice to be in rather than in county where estate situated. 

CHAPTER 16. 
Referees and Masters. 

Sec. 

10-1407. Towers of referees in Chester, 

Lexington, Saluda and York 

Counties. 

§ 10-1402. When reference may be compulsorily ordered. 

III. COMPULSORY REFERENCE IN roneous.— In an action against husband 

TAKING ACCOUNTS. and wife individually and as partners, 

Account must be long and complicated. where tbe wife's answer raised a material 
— For an action at law to be compulsor- substantial issue of fact as to the allega- 
ily referable, the account must not only be tion that she was a member of the part- 
lung, but so complicated as to be beyond nership, the matter should not have been 
comprehension and finding of jury. Taylor referred to the referee to decide this is- 
v. Cecil's Incorporated, 229 S. C. 182, 92 sue of fact and the wife was entitled to a 
S. E. 2d 268 (1956). t f ' a ' by jury of the issues raised by her 

Long account not of necessity com- answer. Nachman-Rhodes, Inc. v. Light- 
plicated or complex, which may be of such ner, 219 S. C. 167, 64 S. E. 2d 393 (1951). 
nature as to be easily and correctly deter- Compulsory reference in action to re- 
mined by a jury. Clelland v. Lanham, 236 cover compensation for legal services held 
S C 351, 114 S. lv 2d 328 (1960). erroneous as depriving defendant of right 

IV. RELATION OF SECTION TO to trial by jury. De Pass v. Piedmont 

TRIAL BY JURY. Interstate Fair Ass'n, 217 S. C. 38, 59 S. 

Compulsory reference to determine fac- E. 2d 495 (1950). 
tual issue of existence of partnership er- 

222 



§ 10-1403 



1960 Cumulative Supplement 



10-1412 



§ 10-1403. Reference in equitable matters. 



Cross reference. — As to order of refer- 
ence depriving party of right to trial by 
jury, see note to § 10-1402, analysis line 
IV. 

Party deprived of right to trial by jury 
by order of reference because of account 



involved, where the account was not long 
and so complicated as to be beyond com- 
prehension and finding of jury. Taylor v. 
Cecil's Incorporated, 229 S. C. 182, 92 S. E. 
2d 268 (1956). 



§ 10-1406. Powers of referee and master. 

Cross references. — As to amendment of 692; further provisions for masters, see 
pleadings generally, see §§ 10-691 and 10- § 15-1815. 

§ 10-1407. Powers of referees in Chester, Lexington, Saluda and York 
Counties. 

The power and authority of masters in equity is hereby conferred upon special 
referees in Chester, Lexington, Saluda and York Counties; however, the court 
appointing such special referees may limit their power and authority by a written 
order. 

1935 (39) 349; 1951 (47) 33, 178; 1955 (49) 470. 

Effect of amendment. — The amendment 
rearranged the section and added the first 
sentence excepting the counties. 



§ 10-1408. Method of trial. 

Rules of evidence applicable at reference 
before master, and he has power to decide 
any objection to competency, relevancy or 



admissibility of any testimony which may 
be offered. Goolsby v. Goolsby, 229 S. C. 

101, 92 S. E. 2d 57 (1956). 



§ 10-1409. Procedure upon objection to evidence. 

It is duty of referee to take all testimony 
offered even though he regards it as in- 
admissible, and his refusal to do so is 
prejudicial error. Elrod v. Elrod, 230 S. C. 
109, 94 S. E. 2d 237 (1956). 

Objection to testimony taken by master 

§ 10-1412. Findings; effect thereof. 

This section is applicable to actions in 
equity. White v. Livingston, 231 S. C. 301, 
98 S. E. 2d 534 (1957). 

Facts should be stated briefly, distinctly 
and independently of any view taken of 
law of case, and referee's failure to state 
facts found by him and merely finding as 
a fact that material allegations of complaint 
were true and correct in their entirety, 
fell far short of compliance with this sec- 
tion. Elrod v. Elrod, 230 S. C. 109, 94 S. E. 
2d 237 (1956). 

Not proper to consider questions not 
raised in exceptions to Master's Report. 
Tavlor v. Taylor, 229 S. C. 92, 91 S. E. 
2d "876 (1956)"; Wise v. Picow, 232 S. C. 
237, 101 S. E. 2d 651 (1958); Lisenby v. 
Newsom, 234 S. C. 237, 107 S. E. 2d 449 
(1959). 

Right to raise question of insufficiency 
of exception waived where raised for first 



must be made before him, and it comes too 
late if first made by exception to his re- 
port. Goolsbv v. Goolsby, 229 S. C. 101, 
92 S. E. 2d 57 (1956). 



time in brief after long lapse of time. Evans 
v. Evans, 226 S. C. 451, 85 S. E. 2d 726 
(1955). 

Conclusion of master not challenged by 
exceptions to his report becomes the law 
of the case. Kerr v. City of Columbia, 232 
S. C. 405, 102 S. E. 2d 364 (1958). 

Failure to except to stated theory upon 
which case tried. — Where no exception was 
taken to statement of referee of theory 
upon which case was tried, another theory 
may not be advocated on appeal. White v. 
Livingston, 231 S. C. 301, 98 S. E. 2d 534 
(1957). 

Where case tried before referee as an 
action to set aside deed for fraud, plaintiff 
may not advocate on appeal another theory 
that the deed should be construed as a 
mortgage. White v. Livingston, 301 S. C. 
231, 98 S. E. 2d 534 (1957). 






223 



S 10-1453 



Code ok Laws of South Carolina 



§ 10-1461 



CHAPTER 17. 

Verdicts. 

§ 10-1453. When jury may render special or general verdict; directing spe- 
cial findings. 



I. GENERAL CONSIDERATION. 

And to permit settlement in one suit of 
all claims and controversies between the 
parties. — In accord with paragraph under 
this catchline in Code. See Washington v. 
Western Auto Supply Company, 230 S. C. 
424, 96 S. E. 2d 63 (1957). 

Successful defendant in claim and de- 
livery action may not maintain independent 
action for damages. — Defendant in claim 
and delivery action, who has been awarded 
possession of the property or its value, 
may not thereafter maintain an independ- 
ent action to recover damages for the tak- 
ing and detention of such property. Wash- 
ington v. Western Auto Supply Company, 
230 S. C. 424, 96 S. E. 2d 63 (1957). 

IV. ASSESSMENT OF DAMAGES. 

Language in section as to damages per- 
missive only. — In accord with paragraph 
under this catchline in Code. See Wash- 
ington v. Western Auto Supply Company, 
230 S. C. 424, 96 S. E. 2d 63 (1957). 



IX. GENERAL AND SPECIAL 
VERDICTS. 

Special verdict is in discretion of jury 
in action for recovery of money only. — 
In an action to recover on a fire insur- 
ance policy, where there were four sepa- 
rate schedules of indemnity, limited in 
their several amounts, the court was 
not bound to direct the jury to find a 
special verdict upon any or all of the is- 
sues. The action was for the recovery 
of money only and in such cases the ren- 
dition of a special verdict is within the 
discretion of the jury. Eaves v. Pro- 
gressive Fire Ins. Co., 217 S. C. 365, 60 
S. E. 2d 687 (1950). 

Request for special verdict within trial 
court's discretion. — Request for special ver- 
dict on question of ownership addressed to 
trial court's discretion. Clanton's Auto 
Auction Sales v. Campbell, 230 S. C. 65, 
94 S. E. 2d 172 (1956). 



§ 10-1457. Force of verdict on issue out of chancery. 

Findings on issues submitted to jury Greenwood Lumber Co. v. Cromer, 225 
under terms of § 10-1057 are conclusive. S. C. 375, 82 S. E. 2d 527 (1954). 



§ 10-1461. Motions for new trial. 

I. GENERAL CONSIDERATION 

An appeal solely from an order refusing 
a new trial must be confined to matters 
with which that order was concerned. Shea 
v. Glens Falls Indemnity Company, 228 
S. C. 173, 89 S. E. 2d 221 (1955). 

II. EXCEPTIONS UPON WHICH 
NEW TRIAL GRANTED. 

Order granting or refusing new trial 
when based solely on error of law is sub- 
ject to review by Supreme Court, but when 
the order is based upon questions of fact, 
or upon both questions of law and fact, it 
is not appealable. Smith v. Traxler, 228 
S. C. 418, 90 S. E. 2d 482 (1955). 

Order granting new trial on ground that 
verdict was improperly directed, appealable, 
as is an order granting new trial on ground 
that an error of law had been committed 
in granting a nonsuit. Smith v. Traxler, 228 
S. C. 418, 90 S. E. 2d 482 (1955). 
IV. NEW TRIAL WHERE VERDICT 

EXCESSIVE OR INADEQUATE. 

Trial judge has responsibility of setting 
aside excessive verdict. — If trial judge finds 
verdict to be excessive or unduly liberal, 
he has the power, and with it the respon- 
sibility, of setting it aside or reducing it by 
granting new trial nisi. Newman v. Brown, 
228 S. C. 472, 90 S. E. 2d 649 (1955). 

Verdict resulting from passion or preju- 
dice should be set aside. — If verdict so 



grossly excessive as to indicate that jury 
was moved by passion or prejudice, it 
should be set aside, not reduced. Brown v. 
Hill. 228 S. C. 34, 88 S. E. 2d 838 (1955). 

If verdict so grossly excessive as to be 
deemed to be result of disregard of facts 
and of instructions of the Court and to be 
due to passion and prejudice rather than 
reason, verdict itself, rather than amount 
of verdict, is inherently vicious, and ver- 
dict should not be permitted to stand 
whether question arises in Circuit Court 
or Supreme Court. Jackson v. Solomon, 228 
S. C. 225, 89 S. E. 2d 436 (1955). 

Improper to grant new trial of the issue 
of damages only. South Carolina Elec. & 
Gas Co. v. Aetna Insurance Co., 233 S. C. 
557, 106 S. E. 2d 276 (1958). 

V. DISCRETION OF JUDGE. 

Granting motion for new trial lies in 
discretion of judge. 

The power of a trial judge to grant a 
new trial absolute or nisi in a law case 
upon his disapproval of the verdict on 
factual grounds is an essential discretion 
of a trial court which the Supreme Court 
does not possess under the present Con- 
stitution. But the discretion is founded 
upon the facts, the evidence, the wit- 
nesses, the trial circumstances, the ver- 
dict and the judge's view of them, hence 
his sometime designation as the thirteenth 



224 



§ 10-1463 



1960 Cumulative Supplement 



§ 10-1505 



juror. Fallon v. Rucks, 217 S. C. 180. 60 
S. E. 2d 88 (1950). 

In cases where verdict may be deemed 
excessive because of undue liberality on 
part of jury, the verdict is not inherently 
vicious and Circuit Court may in its dis- 
cretion grant a new trial nisi; but where 
it has refused to do so, Supreme Court will 
not usually interfere, the matter being one 
within sound discretion of Circuit Court. 
Jackson v. Solomon, 228 S. C. 225, 89 S. E. 
2d 436 (1955). 

To warrant reversal on appeal of a re- 
fusal to grant new trial on ground of al- 
leged excessiveness of verdict, it is neces- 
sary that verdict be so excessive as to in- 
dicate that it was result of prejudice, ca- 
price, passion, or other consideration not 
found in evidence. Newman v. Brown, 228 
S. C. 472, 90 S. E. 2d 649 (1955). 

Supreme Court will not usually interfere 
in amounts of verdicts, the matter being 
one ordinarily within sound discretion of 
Circuit Court, unless verdict is so grossly 

§ 10-1463. When new trials granted. 

Cross reference. — For treatment of sub- 
ject of granting new trials for insufficient 



excessive as to be deemed result of disre- 
gard of facts and of instruction of Court, 
and to be due to passion and prejudice 
rather than reason. Jackson v. Solomon, 228 
S. C. 225, 89 S. E. 2d 436 (1955). 

If amount of verdict is such as to indi- 
cate undue liberality on part of jury, power 
to reduce it rests with trial judge alone, 
and his refusal to do so will not be re- 
viewed. Brown v. Hill, 228 S. C. 34, 88 
S. E. 2d 838 (1955). 

Verdict for punitive damages may not 
be struck down in toto. — Where new tnal 
nisi granted in which verdict for actual 
damages reduced and verdict for punitive 
damages eliminated, held, that while trial 
judge has wide discretionary power to re- 
duce amount of verdict the exercise of 
which will rarely be disturbed, this power 
has its limitations and does not extend to 
striking down in toto a verdict which has 
support in the evidence. Johnson v. Life 
Insurance Company of Georgia, 227 S. C. 
351, 88 S. E. 2d 260 (1955). 



evidence or for excessive damages, see note 
to § 10-1461. 



CHAPTER 18. 

Judgments and Decrees Generally. 



Article 2. 
Judgments by Default or Confession. 

Sec. 

10-1532. Judgment after reference or upon 

evidence taken by court. 

Article 3. 

Judgment Roll; Abstracts; Filing or 

Docketing. 

10-1542. Entries in abstract of judgments; 

index to judgments. 



Sec. 

10-1546. Indices to judgments in Charles- 
ton County; notice. 
Article 5. 
Lien. 
10-1564. When attorneys decreed agents of 
judgment creditors for service of 
process. 



Article 1. 
In General. 
§ 10-1505. Judgment on frivolous demurrer, answer or reply. 



A motion to strike as sham differs from 
motion to strike for irrelevancy in that the 
latter is in the nature of a demurrer. Black- 
well v. United Insurance Co. of America, 
229 S. C. 296. 92 S. E. 2d 702 (1956). 

Sham pleading is one good in form but 
false in fact and not pleaded in good faith, 
but pleading will be stricken only where 
its falsity clearly appears. Scott v. Meek, 
228 S. C. 29, 88 S. E. 2d 768 (1955). 

Pleading not disposed of under this sec- 
tion if its truth or falsity in doubt. — Where 
issue of truth or falsity of pleading is in 
doubt it should be resolved upon trial of 
cause and not upon hearing of motion to 
strike as sham; hut where showing in sup- 
port of motion is susceptible of no reason- 
able inference other than that pleading is in 
fact sham, motion to strike should be 



granted. Scott v. Meek, 228 S. C. 29, 88 
S. E. 2d 768 (1955). 

Striking of answer or defense as sham is 
drastic remedy and is available only with 
respect to an answer or defense which is 
good in form but false in fact and not 
pleaded in good faith, being a mere pre- 
tense; but the remedy is rarely allowed. 
Blackwell v. United Insurance Co. of 
America, 229 S. C. 296, 92 S. E. 2d 702 
(1956). 

Judgment entered for plaintiff upon 
pleadings where answer stricken as sham 
and frivolous. United States Casualty Co. 
v. Hiers, 233 S. C. 333, 104 S. E. 2d 561 
(1958); Hamilton v. Patterson, S. C. 

. 115 S. E. 2d 68 (1960). _ 

Counterclaim may be stricken as sham. 
— Where defendant set up counterclaim in 



225 



S 10-1511 



Code of Laws of South Carolina 



8 10-1532 



action for damages arising out of auto- 
mobile collision, and it was shown that 
defendant had been paid in full for all in- 
juries and damage resulting to him from 
accident and that he had executed uncon- 
ditional release discharging plaintiff, motion 
to strike counterclaim as sham should have 
been granted. Scott v. Meek, 228 S. C. 29, 
88 S. E. 2d 768 (1955). 

Answer stricken as sham and irrele- 
vant. — In action for specific performance of 
written contract to sell real estate where 
answer admitted performance of contract 



on part of purchaser, all allegations of 
vendor's answer which varied or altered 
written contract in any way were properly 
stricken as sham and irrelevant as ob- 
viously intended for purpose of delay, it 
being duty of court to strike out an answer 
as sham, notwithstanding fact that answer 
contains general denial, if admissions in 
remainder of answer disclose that there is 
no defense, and plaintiff entitled to judg- 
ment on pleadings. Butler v. Schilletter, 
230 S. C. 552, 96 S. E. 2d 661 (1957). 



§ 10-1511. Same; exceptions; motion for new trial when further proceedings 
required. 

Cited in White v. Livingston, 231 S. C. 
301, 98 S. E. 2d 534 (1957). 

§ 10-1512. Case or exceptions for review of evidence. 

Cited in White v. Livingston, 231 S. C. 
301, 98 S. E. 2d 534 (1957). 

§ 10-1516. Judgments against unincorporated associations. 

Members of unincorporated association Army officers' mess immune from suit 

are jointly and severally liable for obliga- under federal law by which the State and 

tions of the association. Hall v. Walters, its courts are bound. Brame v. Garner, 

226 S. C. 430, 85 S. E. 2d 729 (1955). 232 S. C. 137, 101 S. E. 2d 292 (1957). 

Article 2. 
Judgments by Default or Confession. 



§ 10-1531. Judgment by default. 

Cross reference. — As to judgment by 
default where itemized account not 
served and complaint not verified, see 
§ 10-1532 and note thereto. 

Validity of default judgment tested by 
status of action at time of its rendition, 
and it cannot be bolstered by facts dehors 
the record as it existed at that time. Knight 
v. Martin, 230 S. C. 460, 96 S. E. 2d 473 
(1957). 

Substantial compliance with this section 
Is sufficient. Jordan v. Tadlock, 223 S. C. 
326, 75 S. E. 2d 691 (1953). 

Substantial compliance with requirement 
of verification. — Verification to a com- 
plaint was sufficient where the creditor 
deposed he had read the complaint "and 
knows the contents thereof and that the 
same is true of his own knowledge," since 
the logical meaning and conclusion of this 
allegation is that the account is true and 
correct, and no part of the sum sued for 
has been paid by discount or otherwise. 
Jordan v. Tadlock, 223 S. C. 326, 75 S. E. 
2d 691 (1953). 

Where the statement of account was 



attached to the complaint and made a part 
thereof by appropriate allegation, and the 
complaint was verified by the creditor be- 
fore a notary public, the account was suf- 
ficiently verified though no affidavit was 
appended thereto. Jordan v. Tadlock, 223 
S. C. 326, 75 S. E. 2d 691 (1953). 

Default judgment invalid if itemized ac- 
count not served with complaint in un- 
liquidated demand. — Statement attached to 
complaint for recovery of account showing 
an amount thereof as "Balance forward on 
car note mortgage — 1941", and another 
amount itemized by date only, insufficient 
compliance with this section, and judgment 
vacated. Knight v. Martin, 230 S. C. 460, 
96 S. E. 2d 473 (1957). 

Judgment by default improperly entered 
on unliquidated claim. — Where claim for 
damages was unliquidated, judgment by 
default could not be entered where there 
was no testimony, which should have been 
taken in open court. Broome v. Broome, 
230 S. C. 155, 94 S. E. 2d 439 (1956). 

Applied in Patrick v. Wolowek, 225 S. C. 
180. 81 S. E. 2d 717 (1954). 



§ 10-1532. Judgment after reference or upon evidence taken by court, 

The court of common pleas may upon motion of the plaintiff refer any or all issues 
in any default case whether the claim, demand or cause of action be on contract or 
in tort, and whether the claim or demand be liquidated or unliquidated, or hear 

226 



§ 10-1542 1960 Cumulative Supplement § 10-1564 

the allegations and evidence of the plaintiff in term time or at chambers and upon 
the evidence so taken by the court or upon hearing the report of the master and 
the evidence produced before him render judgment for the plaintiff for such relief 
as his allegations and proof may warrant. 

1942 Code § 586; 1932 Code § 586; Civ. P. '22 § 526; Civ. P. "12 § 305; Civ. P. '02 

§ 267; 1870 (14) § 269; 1873 (15) 502; 1882 (18) 112; 1884 (18) 709; 1889 (23) 41; 1929 
(31) 25; 1939 (41) 336; 1953 (48) 137. 

Effect of amendment. — The amendment bers and testified under oath that the 
inserted the phrase "whether the claim, amount claimed was due and owing and 
demand or cause of action be on contract that no part of the same had been paid by 
or in tort, and whether the claim or de- discount or otherwise, entry of judgment 
mand be liquidated or unliquidated." by default was authorized under this sec- 
Judgment where itemized account not tion. Arthur v. Devaux. 217 S. C. 256. 
served and complaint not verified. — 60 S. E. 2d 590 (1950). 
Where, in an action on an account, no Court may render default judgment for 
itemized, verified statement of the account tort and unliquidated damages. — Prior to 
was attached to or served with the sum- amendment of 1953, Court could not grant 
mons and complaint, and the verification judgment by default on cause of action 
was so defective as to amount in law to sounding in tort seeking unliquidated dam- 
no verification whatsoever, but, no answer ages without aid of jury, but this section 
or demurrer to the complaint having been now authorizes Court of Common Pleas to 
served on the respondent or his counsel render judgments by default in actions in 
in response to the summons, and affidavit tort and for unliquidated damages without 
of default having been duly made, plain- aid of jury. Patrick v. Wolowek, 225 S. C. 
tiff appeared before the judge at his cham- 180, 81 S. E. 2d 717 (1954). 

Article 3. 
Judgment Roll; Abstracts; Filing or Docketing. 

§ 10-1542. Entries in abstract of judgments ; index to judgments. 

Editor's note. — Provision relating to re- 
newal of judgment is obsolete. 

§ 10-1546. Indices to judgments in Charleston County; notice. 

The clerk of court of Charleston County may compile into one index all judg- 
ments filed or recorded between January 1 1948 and December 31 1957 and may 
so compile all judgments filed or recorded thereafter at the end of each succeeding 
ten-year period. The condensed index shall (a) be alphabetically and lexicographi- 
cally arranged and compiled, (b) include only such judgments which are unsatis- 
fied of record at the time such index is prepared, (c) be the official judgment book 
and (d) constitute notice of judgment lien. Any judgment erroneously omitted 
from the compilation may be restored by the court of common pleas after notice to 
the attorneys for the parties and hearing thereon. The county council is requested 
to make available sufficient funds to accomplish this compilation. 

1957 (50) 304. 

Article 5. 

Lien. 

§ 10-1561. Judgments lien on real estate for ten years. 

Seizure is not necessary to perfect a lien fected prior to filing of federal liens in 

on real estate. — United States v. State, 227 clerk of court's office, United States having 

S. C. 187, 87 S. E. 2d 577 (1955). failed to show when assessment lists were 

Federal income tax liens against insol- received by Collector. United States v. 

vent debtor were inferior to those of judg- State. 227 S. C. 187, 87 S. E. 2d 577 (1955). 
ment creditor, income tax liens of State of Cited in Prudential Insurance Co. of 

South Carolina, and liens of county and America v. Wadford, 232 S. C. 476, 102 

town taxes, which were specific and per- S. E. 2d 889 (1958). 

§ 10-1564. When attorneys decreed agents of judgment creditors for service 
of process. 

Editor's note. — Provision relating to re- 
newal or revival of judgment obsolete. 

227 



8 io-ir.oi 



Code of Laws of South Carolina 



§ 10-1705 



CHAPTER 19. 
Costs. 



Sec. 

10-1603. [Repealed.] 

§ 10-1601. Costs follow event of action 

III. ALLOWANCE OF COSTS IN 
EQUITY CASES. 

Ordinary rule that costs must be taxed 
in favor of prevailing party against losing 
party is not binding on the chancellor, and 
is only effective in equity cases when not 
otherwise ordered by the Court. South 
Orange Trust Company v. Conner, 228 
S. C. 218, 89 S. E. 2d 372 (1955). 

Power of court to allow costs must be 
exercised with discretion. — Allowance of 



; exception. 

costs in equity cases within power of court, 
but it must be exercised with discretion 
and must be based upon reason. Nash v. 
Gardener, 232 S. C. 215, 101 S. E. 2d 
283 (1957). 

Allowance of costs modified where 
record indicated no sound reason for action 
of trial court and that it was arbitrary. 
Nash v. Gardner, 232 S. C. 215, 101 S. E. 
2d 283 (1957). 



§ 10-1603. Costs when action improperly defended. 
Repealed by A. & J. R. 1960 (51) 1748. 

§ 10-1605. Interest on verdict or report. 

Applied in Crook v. State Farm Mutual 
Automobile Insurance Co., 235 S. C. 452, 
112 S. E. 2d 241 (1960). 

CHAPTER 20. 
Executions and Judicial Sales Generally. 



Article 2. 
Discovery; Arrest; Garnishment; 
Receivers, etc. 
Sec. 

10-1731. What property may be ordered to 
be applied to execution. 



Article 3. 
Judicial Sales Generally. 

Sec. 

10-1753. Where and by whom sales made. 

10-1753.1. Same; sales by special referee in 

Lexington County. 
10-1766.1. Same; Greenville County. 



Article 1. 
General Provisions. 

§ 10-1704. To what counties execution issued. 

Service cf executions directed to sheriff, cuit court proceeding. Atty. Gen. Op. Aug. 

and no authority found for directing such 24, 1957. 
service to anyone other than sheriff in cir- 



§ 10-1705. Execution against the person. 

Must be strict compliance with section. — 
It is elementary that statutes authorizing 
arrest in civil actions and execution against 
the person must be strictly followed when 
invoked. Ramantanin v. Miller, 225 S. C. 
77, 80 S. E. 2d 925 (1954). 

And strictly construed. — Statutes autho- 
rizing arrest in civil actions and execution 
against the person must be strictly fol- 
lowed and construed when invoked. Raker 
wholesale Company v. Fleming, 227 S. C. 
312, 87 S. E. 2d 876 (1955). 

Failure of compliance. — Issuance of exe- 
cution against person of judgment debtor 
could not be made where it appeared that 
the action was not for injury to property 



and record contained no complaint other- 
wise complying with this section. Raman- 
tanin v. Miller, 225 S. C. 77, 80 S. E. 2d 
925 (1954). 

Allegations of complaint, where arrest is 
sought, should be sufficiently specific so as 
to give defendant notice that he must be 
prepared to contest with plaintiff facts in- 
volving right of arrest as well as alleged 
indebtedness. Baker Wholesale Company 
v. Fleming, 227 S. C. 312, 87 S. E. 2d 
876 (1955). 

Stated in Baker Wholesale Company v. 
Fleming, 227 S. C. 312, 87 S. E. 2d 876 
(1955). 



22S 



§ 10-1721 1960 Cumulative Supplement § 10-1753.1 

Article 2. 
Discovery ; Arrest; Garnishment; Receivers, etc. 

§ 10-1721. Order for discovery of property. 

I. GENERAL CONSIDERATION. 
Applied in Fagan v. Timmons, 217 S. 
C. 432, 60 S. E. 2d 863 (1950). 

§ 10-1731. What property may be ordered to be applied to execution, 

The judge may order any property of the judgment debtor, not exempt from 
execution, in the hands of himself or any other person or due to the judgment 
debtor, to be applied towards the satisfaction of the judgment, provided, that an 
amount not exceeding fifteen per cent of the judgment debtor's wages, salary, fees 
or commissions due or to become due under any existing contract of employment 
may, in the discretion of the judge, be ordered to be so applied to judgments for 
balance due upon food, fuel or medicine accounts. In exercising such discretion 
the judge shall take into special consideration the needs of the debtor's family as 
well as the rights of the creditor. But this section shall not apply to judgments in 
excess of the amount of one hundred dollars. Such discretion shall not apply to 
any judgment secured upon monies lent, judgment creditor holding a mortgage 
over any property of the judgment debtor, and debts in existence May 14 1960. 

1942 Code § 750; 1932 Code § 750; Civ. P. '22 § 617; Civ. P. '12 § 355; Civ. P. '02 
§ 317; 1870 (14) § 323; 1960 (51) 1716. 

Effect of amendment. — The 1960 amend- may be reached in supplementary proceed- 
ment eliminated exemption of certain earn- ings. Lynn v. International Brotherhood 
ings from execution and added all after of Firemen & Oilers, 228 S. C. 357, 90 S. E. 
the first sentence. 2d 204 (1955). 

Property reached through supplementary Funds in hands of third party proven 

proceedings. — Proceedings supplementary prima facie to belong to judgment debtor 
to execution, in addition to providing for may be reached in supplementary proceed- 
examination of judgment debtor for pur- ines. Lynn v. International Brotherhood of 
pose of discovering property out of which Firemen & Oilers, 228 S. C. 357, 90 S. E. 
judgment against him may be satisfied, 204 (1955). 

furnish a means of reaching, in aid of the Court has power to order amount of 

judgment, property beyond reach of ordi- local union's monthly payments to parent 
nary execution, such as choses in action. union applied by its proper officers to pay- 
Lynn v. International Brotherhood of Fire- ment of judgment against parent union, 
men & Oilers, 228 S. C. 357, 90 S. E. 2d Lynn v. International Brotherhood of Fire- 
204 (1955) men & Oilers, 228 S. C. 357, 90 S. E. 2d 204 

Judgment in favor of judgment debtor (1955). 

§ 10-1732. Judge may appoint receiver. 

All creditors need not be original parties not deprive the court of jurisdiction to ap- 

to proceedings for the appointment of a point a receiver under this section to take 

receiver. Fagan v. Timmons, 217 S. C. 432, possession of the defendant's property, col- 

60 S. E. 2d 863 0950). lect the rents, issues and profits and hold 

United States is not necessary party the same subject to the tax liens and the 

though property subject to federal tax further orders of the court. Fagan v. 

liens.— The fact that the United States, Timmons, 217 S. C. 432, 60 S. E. 2d 863 

which had filed income tax liens against (1950). 
the debtor's property, was not a party did 

Article 3. 
Judicial Sales Generally. 

§ 10-1753. Where and by whom sales made. 

Editor's note. — For amendment, 1958 p. 
1957. relating to Lexington County, see § 
10-1753.1. 

§ 10-1753.1. Same ; sales by special referee in Lexington County. 
Provisions of A. & J. R. 1958 (50) 1957 make up this section. 

229 



§ 10-17U..1 



Code os Laws ok South Carolina 



§ 10-1951 



§ 10-1766.1. Same; Greenville County. 

The master's sales in Greermlle County may be conducted in the county court- 
room in the courthouse for Greenville County, or at such other place in the county 
as the court may direct, any law or custom to the contrary notwithstanding. 

1958 (50) 1661. 

§ 10-1775. Compensation of officer making sale. 

Cross reference. — As to commissions of 
Spartanburg County master, see § 27-209. 



CHAPTER 22. 

Arbitration. 



§ 10-1901. Agreement to arbitrate. 

This chapter enacted under mandate of 
Constitution, Art. VI, Sec. 1. Harwell v. 
Home Mutual Fire Insurance Company, 
228 S. C. 594, 91 S. E. 2d 273 (1956). 

This chapter does not abrogate common 



law right to make agreement for arbitra- 
tion, and arbitration under such agreement 
falls entirely without it. Harwell v. Home 
Mutual Fire Insurance Company, 228 S. C. 
594, 91 S. E. 2d 273 (1956). 



CHAPTER 23. 
Death by Wrongful, Act and Lynching. 

Article 1. 
Death by Wrongful Act. 
Civil action for wrongful act causing death. 



§ 10-1951 

I. GENERAL CONSIDERATION. 

This section created a new cause of ac- 
tion. — Complete Auto Transit, Inc., v. Bass, 
229 S. C. 607, 93 S. E. 2d 912 (1956). 

What law governs. — In actions for 
wrongful death the lex loci governs as 
to all matters that may be considered to 
be substantive and which create and af- 
fect the right to sue; but as to any mat- 
ters that may be considered to be merely 
procedural the lex fori will govern. An- 
derson v. Lane, 97 F. Supp. 265 (1951). 

Applied in McCulIem v. Liberty Life 
Ins. Co., 217 S. C. 565, 61 S. E. 2d 181 
(1950); Conyers v. Atlantic Coast Line 
K. Co., 218 S. C. 278, 62 S. E. 2d 478 
(1950); Jones v. Atlanta-Charlotte Air 
Line R. Co., 218 S. C. 537, 63 S. E. 
2d 476, 26 A. L. R. 2d 297 (1951); DuRant 
v. George A. Rheman Co., Inc., 219 S. C. 
250, 64 S. E. 2d 531 (1951); Dawson v. 
South Carolina Power Co., 220 S. C. 26, 66 
S. E. 2d 322 (1951); Webb v. Southern Ry. 
Co., 221 S. C. 450, 71 S. E. 2d 12 (1952); 
Williamson v. Charleston, etc., R. Co., 222 
S. C. 455, 73 S. E. 2d 537 (1952); Mason v. 
Helms, 97 F. Supp. 312 (1951); Folk v. 
United States, 102 F. Supp. 736 (1952); 
Floe v. Plowden, 192 F. 2d 291 (1951); 
Atlantic Coast Line R. Co. v. Glenn, 198 
F. 2d 232 (1952); United States v. Folk, 
199 F. 2d 889 (1952); Greene v. Miller, 114 
F. Supp. 150 (1953); Miller v. Atlantic 
Coast Line R. Co. 225 S. C. 217, 81 S. E. 
2d 335 (1954); Butler v. Temples, 227 S. C. 



496, 88 S. E. 2d 586 (1955); Shaw v. At- 
lantic Coast Line Railroad Company, 238 
F. 2d 525 (1956). 

Cited in DeLoach v. Griggs, 222 S. C. 
326, 72 S. E. 2d 647 (1952); American 
Casualty Co. v. Howard, 187 F. 2d 322 
(1951); Smith v. Canal Insurance Company, 
228 S. C. 45, 88 S. E. 2d 780 (1955); Wil- 
liams v. Ray, 232 S. C. 373, 102 S. E. 2d 
368 (1958). 

II. NATURE OF RIGHT 
CONFERRED BY SECTION. 

Test of right is whether deceased could 
have maintained action. — In accord with 
paragraph under this catchline in Code. 
See Hall v. Murphy, 236 S. C. 257, 113 
S. E. 2d 790 (196(1). 

Action will lie for wrongful death from 
prenatal injuries of viable child born live. 
— Test of right of administrator to maintain 
action for wrongful death is whether de- 
ceased could have maintained action for 
injury had he survived, and a foetus having 
reached period of prenatal maturity where 
it is capable of independent life apart from 
its mother is a person, and if such child is 
injured it may after birth maintain an 
action for such injuries. Hall v. Murphy, 
236 S. C. 257, 113 S. E. 26 790 (1960). 

Two causes of action exist upon death. — 
Administrator's relation to cause of action 
conferred by this section is wholly different 
from that with regard to cause of action for 
oain suffered by decedent between time of 
injury and time of death, the latter being 



230 



§ 10-1952 



1960 Cumulative Supplement 



§ 10-1952 



for benefit of estate and proceeds of re- 
covery liable for payment of debts and 
other claims. Bailes v. Southern Railway 
Company, 227 S. C. 176, 87 S. E. 2d 481 
(1955). 

Action will not lie for wrongful death of 
unborn child, quick and capable of moving 
in its mother's womb, where mother suf- 
fered miscarriage after approximately five 
and one-half months of pregnancy. West v. 
McCoy, 233 S. C. 369, 105 S. E. 2d 88 
(1958). 

Failure to counterclaim in action in fed- 
eral court. — Fact that plaintiff had not 
counterclaimed in action in federal court 
brought by defendant executrix against 

§ 10-1952. Beneficiaries of action for 

This action can be brought only in name 
of legally appointed administrator of estate 
of deceased person. Westbrook v. United 
States Plywood Corporation, 177 F. Supp. 
801 (1959). 

The defendants cannot be heard to 
question the propriety of the appointment 
of the administrator who brings the ac- 
tion. They have no standing to question 
the method of administration of the estate 
and their sole interest in the cause is the 
denial of their alleged liability for negli- 
gent death under Lord Campbell's Act. 
Mason v. Helms, 97 F. Supp. 312 (1951). 

The citizenship and residence of the 
administrator governs the matter of juris- 
diction of the federal courts in actions for 
wrongful death. Mason v. Helms, 97 F. 
Supp. 312 (1951). 

A wife who before her husband's death 
was living in adultery with another man 
was not a "widow" under the South Car- 
olina death statute, and the right of re- 
covery for death accrued to plaintiff's in- 
testate's mother. Folk v. United States, 
102 F. Supp. 736 (1952). 

Next remoter class becomes entitled to 
cause of action after death of original bene- 
ficiary. — Where husband, for whose benefit 
action for wrongful death of his wife could 
have been brought, died before action insti- 
tuted, the next remoter class of beneficiaries 
under this section became entitled to such 
cause of action, and not husband's heirs at 
law. Rushton v. Smith, 233 S. C. 292, 104 
S. E. 2d 376 (1958). (Editor's note.— Appel- 
lants argued in their brief imputability of 
husband's negligence to next remoter class 
of statutory beneficiaries for whose benefit 
action brought, but Supreme Court refused 
to consider this claim because it was not 
before lower court.) 

Procedure in action under foreign stat- 
ute. 

In an action brought in South Caro- 
lina for the death of a wife and mother 
in an automobile collision in Georgia, 
the Georgia statute, which requires that 
in su:h case the surviving husband and 



plaintiff for alleged wrongful death of her 
husband, in which settlement was made, 
did not bar plaintiff's claim for property 
damage nor estop it to maintain this action 
asserting such claim, for plaintiff had no 
cause of action against defendant ex- 
ecutrix in her capacity as representative of 
beneficiaries of cause of action for wrong- 
ful death. Complete Auto Transit, Inc., v. 
Bass, 229 S. C. 607, 93 S. E. 2d 912 (1956). 
III. NEGLIGENCE. 
Parent's contributory negligence imput- 
able to child was jury question. Atlantic 
Coast Line Railroad Company v. Truett, 
249 F. 2d 215 (1957). 



wrongful death. 

children must sue jointly, controls, and 
this section, vesting the right of action 
in the administrator, does not apply. An- 
derson v. Lane, 97 F. Supp. 265 (1951), 
distinguishing Bussey v. Charleston, etc., 
Ry. Co., 73 S. C. 215, 53 S. E. 165 (1906). 

Administrator sues as trustee. — The cause 
of action provided for under this section is 
vested in the administrator not as repre- 
sentative of the estate of the deceased per- 
son or for benefit of creditors of the estate, 
but as the representative of the statutory 
beneficiaries, for whom he is a trustee. 
Bailes v. Southern Railway Company, 227 
S. C. 176. 87 S. E. 2d 481 (1955). 

Beneficiary himself may bring action 
against third person, joining administrator 
as a defendant, if administrator, after de- 
mand, refuses to bring action in behalf of 
statutory beneficiaries, or if he has an ad- 
verse interest or has conspired to defeat 
his trust. Bailes v. Southern Railway Com- 
pany, 227 S. C. 176, 87 S. E. 2d 481 (1955). 

In action brought for benefit of Bister 
and two brothers, charge which referred to 
beneficiaries as decedent's "family, including 
her brothers and sister and others" was 
erroneous and tended to mislead jury into 
assuming that decedent's niece, who testi- 
fied, and perhaps still other members of 
her family were entitled to be compensated 
for the death. Nelson v. Charleston & 
Western Carolina Railway Co., 226 S. C. 
516. 86 S. E. 2d 56 (1955). 

Applied in Conyers v. Atlantic Coast 
Line R. Co., 218 S. C. 278, 62 S. E. 2d 
478 (1950); Jones v. Atlanta-Charlotte 
Air Line R. Co., 218 S. C. 537, 63 S. E. 
2d 476. 26 A. L. R. 2d 297 (1951); Du- 
Rant v. George A. Rheman Co., Inc.. 219 
S. C. 250, 64 S. E. 2d 531 (1951): Webb 
v. Southern Rv. Co.. 221 S. C. 450. 71 S. 
E 2d 12 (1952); Williamson v. Charles- 
ton, etc., R. Co.. 222 S. C. 455, 73 S. E. 
2d 537 (1952); Floe v. Plowden, 192 F. 
2d 291 (1951); Atlantic Coast Line R. Co. 
v. Glenn. 198 F. 2d 232 (1952): Atlantic 
Coast Line Railroad Company v. Truett, 
249 F. 2d 215 (1957). 

231 



§ 10-1954 



Code of Laws of South Carolina 



§ 10-2001 



Cited in DeLoach v. Griggs, 22Z S. C. 
326, 72 S. E. (2d) 647 (1952); American 
Casualty Co. v. Howard, 187 F. 2d 322 
(1951); Nelson v. Charleston & Western 

§ 10-1954. Damages; amount and to 

I. DAMAGES. 
The elements of damage, etc. 

Damages in a Lord Campbell's Act case 
consist mainly of mental shock and suffer- 
ing, grief and sorrow, loss of companion- 
ship, deprivation of the use and comfort 
of the intestate's society, together with 
the pecuniary loss incident thereto. Go- 
million v. Forsythe, 218 S. C. 211, 62 S. E. 
2d 297 (1950). 

Intangible elements of damage of sorrow 
and loss of companionship and advice are 
recoverable under wrongful deatli statute. 
Johnson v. Charleston and Western Caro- 
lina Ry. Co., 234 S. C. 448, 108 S. E. 2d 
777 (1959). 

But only such damages as are sustained 
by the beneficiaries may be recovered. — 
Where there was no evidence to show that 
the death resulted in any pecuniary loss to 
any of the beneficiaries, who were a sister 
and two brothers, it was error to charge 
that among the elements of damage re- 
coverable were "the reasonable value" of 
decedent's life, her "earning capacity", and 
"the actual value" of her life to those for 
whose benefit suit was brought. Nelson v. 
Charleston & Western Carolina Railway 
Co., 226 S. C. 516, 86 S. E. 2d 56 (1955). 

And there is no presumption of pecuniary 
loss in action for benefit of sister and 
brothers as where relation between de- 
ceased and beneficial plaintiff is that of hus- 
band and wife or parent and minor child. 
Nelson v. Charleston & Western Carolina 
Railway Co., 226 S. C. 516, 86 S. E. 2d 56 
(1955). 

In some instances, pecuniary loss is 
presumed. — In accord with paragraph un- 
der this catchline in Code. See Nelson v. 
Charleston and Western C. Ry. Co., 231 
S. C. 351, 98 S. E. 2d 798 (1957). 

Suffering caused by death to survivors 
not alike in all cases. — Where action is 
brought for benefit of brothers and sisters, 



Carolina Railway Co., 226 S. C. 516, 86 
S. E. 2d 56 (1955); Shaw v. Atlantic Coast 
Line Railroad Company, 238 F. 2d 525 
(1956). 

whom payable. 

amount of recovery must necessarily be 
gauged by intimacy of relation, association, 
and feelings of beneficiaries toward de- 
ceased, and no loss of companionship is 
implied from mere relationship. Nelson v. 
Charleston and Western C. Ry. Co., 231 
S. C. 351, 98 S. E. 2d 798 (1957). 

Where two brothers suffered no pecuni- 
ary loss from death of their sister, only 
elements of damage which may be con- 
sidered are grief, mental anguish and loss 
of society and companionship. Nelson v. 
Charleston and Western C. Ry. Co., 231 
S. C. 351, 98 S. E. 2d 798 (1957). 

And funeral expenses can be recovered, 
etc. 

Where funeral expenses are paid by the 
beneficiary they are a proper element of 
damages. Ordinarily funeral expenses are 
not involved in a Lord Campbell's Act 
case, being usually payable out of the es- 
tate of the decedent. Gomillion v. Forsythe, 
218 S. C. 211, 62 S. E. 2d 297 (1950). 

Jury's discretion as to amount of actual 
damages not absolute, and amount of award 
not wholly without limitation and must not 
result from whim or caprice but there must 
some semblance of a basis for justifying 
verdict. Nelson v. Charleston and Western 
C. Ry. Co., 231 S. C. 351, 98 S. E. 2d 798 
(1957). 

Verdict excessive. — In wrongful death 
action for brothers of deceased, verdict for 
$35,000 actual damages reduced by trial 
judge to $29,000 was excessive. Nelson v. 
Charleston and Western C. Ry. Co., 231 
S. C. 351, 98 S. E. 2d 798 (1957). 

Verdict not excessive. — See Dawson v. 
South Carolina Power Co., 220 S. C. 26, 
66 S. E. 2d 322 (1951). 

Applied in Folk v. United States, 102 F. 
Supp, 7i6 (1952); Atlantic Coast Line Rail- 
road Company v. Truett, 249 F. 2d 215 
(1957). 



CHAPTER 24. 
Declaratory Judgments. 



§ 10-2001. Short title. 

This act does not require court to give 
purely advisory opinion which parties 
might, so to speak, put on ice to be used if 
and when occasion might arise or license 
litigants to fish in judicial ponds for legal 
advice. City of Columbia v. Sanders, 231 
S. C. 61, 97 S. E. 2d 210 (1957). 

Applied in Legette v. Smith, 226 S. C. 
403, 85 S. E. 2d 576 (1955); Seaher v. 
Kohn, 227 S. C. 103, 86 S. E. 2d 872 



(1955); Utica-Mohawk Mills v. Orr, 227 
S. C. 226, 87 S. E. 2d 589 (1955); Dantzler 
v. Callison, 227 S. C. 317. 88 S. E. 2d 64 
(1955); Edens v. City of Columbia, 228 
S. C. 563, 91 S. E. 2d 280 (1956); Bank for 
Savings and Trusts v. Towe, 231 S. C. 268, 

98 S. E. 2d 539 (1957); Rogers-Kent. Inc. 
v. General Electric Company, 231 S. C. 636, 

99 S. E. 2d 665 (1957); Stanton v. Gulf Oil 
Corporation, 232 S. C. 148, 101 S. E. 2d 250 



232 



§ 10-2002 



1960 Cumulative Supplement 



§ 10-2003 



(1957); City of Aiken v. State, 232 S. C. 
284, 101 S. E. 2d 841 (1958); Caine v. 
Griffin, 2i2 S. C. 397, 103 S. E. 2d 37 



(1958); Baldwin v. McFadden, 234 S. C. 
563, 109 S. E. 2d 579 (1959). 



§ 10-2002. Courts of record may declare rights, status and other legal re- 
lations. 



The Uniform Declaratory Judgments 
Act covers the whole field of declaratory 
Judgments. Waller v. Waller, 220 S. C. 
212, 66 S. E. 2d 876 (1951). 

This act does not require court to give 
purely advisory opinion which parties 
might, so to speak, put on ice to be used if 
and when occasion might arise or license 
litigants to fish in judicial ponds for legal 
advice. City of Columbia v. Sanders, 231 
S. C. 61, 97 S. E. 2d 210 (1957). 

General principles as to demurrer apply- 
— Complaint not rendered impregnable 
against attack by demurrer for insufficiency 
merely because it seeks only declaratory re- 
lief. Plenge v. Russell, S. C. , 115 
S. E. 2d 177 (1960). 

To withstand demurrer for insufficiency, 
complaint in action for declaratory relief 
need show no more than existence of justi- 
ciable controversy between parties. Plenge 
v. Russell, S. C. ,115 S. E. 2d 177 

(1960). 

Necessity for existing controversy. — It 
is quite true that a declaratory judgment 
should not deal with moot or abstract mat- 
ters or constitute a merely advisory opin- 
ion, and to this end there should be an ex- 
isting controversy, or at least the "ripen- 
ing seeds of a controversy," but the basic 
purpose of the act i9 to provide for declara- 
tory judgments without awaiting a breach 
of existing rights. Waller v. Waller, 220 

§ 10-2003. Deed, will, written contract, 
or franchise. 

Action must be brought by person hav- 
ing substantial interest in subject matter. 
— An action brought under this section to 
determine the validity of a statute must be 
brought by a person having a substantial 
interest in the subject matter of the liti- 
gation, and to establish such an interest, 
he must show that he will be directly af- 
fected by the enforcement of the statute 
questioned. Lee v. Clark, 224 S. C. 138, 77 
S. E. 2d 485 (1953). 

Complaint is sufficient against demurrer 
where it states facts from which it is ap- 
parent that a justiciable controversy, actual 
or potential, exists, the test being not 
whether the construction advanced by 
plaintiff is correct, but whether plaintiff is 
entitled to have will construed. Foster v. 
Foster, 226 S. C. 130, 83 S. E. 2d 752 
(1954). 

Burden of proof rests upon plaintiff. — 
Burden of proof in an action under declara- 
tory judgment act rests no less heavily 
upon shoulders of the plaintiff than in or- 



S. C. 212, 66 S. E. 2d 876 (1951). 

Rule requiring existence of justiciable 
controversy somewhat relaxed where pub- 
lic interest involved. City of Columbia v. 
Sanders, 231 S. C. 61, 97 S. E. 2d 210 
(1957). 

Justiciable controversy. — Where concrete 
issue is present and there is definite as- 
sertion of legal rights and a positive legal 
duty with respect thereto, which are denied 
by adverse party, there is a justiciable con- 
troversy calling for invocation of declara- 
tory judgment action. Dantzler v. Callison, 
227 S. C. 317, 88 S. E. 2d 64 (1955). 

Use and determination of demurrer in 
actions arising under Declaratory Judg- 
ments Act is controlled by same principles 
as apply in other cases. Dantzler v. Calli- 
son, 227 S. C. 317, 88 S. E. 2d 64 (1955). 

Complaint is sufficient against demurrer 
where it sets forth a justiciable controversy, 
and is not subject to objection that it fails 
to state a cause of action, and in passing 
on demurrer court is not concerned with 
whetber plaintiff is right in controversy, 
but is only concerned with whether he is 
entitled to declaration of rights with re- 
spect to matters alleged. Dantzler v. Calli- 
son, 227 S. C. 317, 88 S. E. 2d 64 (1955). 

Applied in South Carolina Elec, etc., 
Co. v. Pinckney, 217 S. C. 407, 60 S. E. 
2d 851 (1950); Nolan v. Daley, 222 S. C. 
407, 73 S. E. 2d 449 (1952). 

statute, municipal ordinance, contract 



dinary civil action, and plaintiff must prove 
material allegations of complaint by greater 
weight or preponderance of testimony. 
Martin v. Cantrell, 225 S. C. 140, 81 S. E. 
2d 37 (1954). 

One whose civil or political rights are 
directly affected by a statute may have the 
necessary interest to challenge the validity 
of the statute by a declaratory judgment 
proceeding. Lee v. Clark, 224 S. C. 138, 77 
S. E. 2d 485 (1953). 

A taxpayer of a school district and a 
patron of the schools therein had sufficient 
interest in the controversy to bring an ac- 
tion under this section to determine the 
validity of a statute dealing with the elec- 
tion of school trustees and to have the 
election of trustees pursuant to such stat- 
ute declared null and void. Lee v. Clark, 
224 S. C. 138, 77 S. E. 2d 485 (1953). 

Taxpayer's suit to determine validity of 
act fixing marriage license fees. — A tax- 
payer could not maintain a suit for a de- 
claratory judgment to determine the valid- 



233 



5 10-2004 



s 



Code of Laws ok South Carolina 



§ 10-201: 



ity of an act fixing fees for issuance of mar- 
riage licenses in a certain county and the 
rights of other persons in funds collected 
under the act, where he was not shown to 
be injuriously affected by the act. Man- 
ning v. Dillon County, 223 S. C. 240, 75 
S. E. 2d 250 (1953). 

Complaint for construction of contracts 
sufficient against demurrer where it stated 
justiciable controversy which could only be 
properly and justly determined after hear- 
ing on merits. Taco Corporation v. Hud- 
son, 231 S. C. 553, 99 S. E. 2d 419 (1957). 

Complaint sufficient against demurrer. — 
In action by doctors against hospital for 
declaratory and coercive relief from regu- 
lations of hospital controlling charges of 
doctors, complaint stated justiciable con- 
troversy requiring for its determination 
hearing on merits. Plenge v. Russell, 
S. C. ,115 S. E. 2d 177 (1960). 



Suit for declaratory judgment to deter- 
mine rights under will held to present ac- 
tual controversy and not to be premature. 
Waller v. Waller, 220 S. C. 212, 66 S. E. 
2d 876 (1951). 

Construction of will. — Action to con- 
strue will and for directions as to distribu- 
tion of residuary estate authorized by this 
section. Padgett v. Black, 229 S. C. 142, 
92 S. E. 2d 153 (1956). 

Action to construe meaning, intent and 
effect of will authorized by this section. 
Rikard v. Miller, 231 S. C. 98, 97 S. E. 2d 
257 (1957). 

Stated in Bank for Savings and Trusts 
v. Towe, 231 S. C. 268, 98 S. E. 2d 539 
(1957). 

Quoted in Pharr v. Canal Insurance 
Company, 233 S. C. 266, 104 S. E. 2d 394 
(1958). 



§ 10-2004. Construe contract before or after breach. 

Quoted in Pharr v. Canal Insurance (1958). 
Company, 233 S. C. 266, 104 S. E. 2d 394 

§ 10-2005. Trust and estate of decedent, infant, lunatic or insolvent. 

Stated in Bank for Savings and Trusts 
v. Towe, 231 S. C. 268, 98 S. E. 2d 539 
(1957). 

§ 10-2007. When declaratory judgment may be refused. 

Declaratory relief should not be accorded in Code. See Charleston & Western Caro- 
to try a controversy by piecemeal. In ac- Una Railway Co. v. Joye, 231 S. C. 493, 99 
cord with paragraph under this catchline S. E. 2d 187 (1957). 

§ 10-2008. Parties. 

Interested persons not bound by decla- 
ratory judgment in action in which they 
were not made parries. — Where insurer ob- 
tained judgment against insured declaring 
that insurer was not legally obligated under 
liability policy issued to insured because, 
after accident, latter failed to co-operate as 
required by insurance contract, and per- 
sons injured by insured were not made 
parties to the action for declaratory judg- 
ment, such persons were not bound by the 



judgment and it was not res adjudicata in 
their actions against insurer brought after 
failure of insured to pay their judgments 
recovered against him. Pharr v. Canal In- 
surance Company, 233 S. C. 266, 104 S. E. 
2d 394 (1958). 

Stated in Bank for Savings and Trusts 
v. Towe, 231 S. C. 268, 98 S. E. 2d 539 
(1957). 

Applied in Lee v. Clark, 224 S. C. 138, 
77 S. E. 2d 485 (1953). 



§ 10-2009. Determination of facts; jury trials. 



Declaratory procedure does not change 
nature of action. — An issue that is essen- 
tially one at law is not transformed into 
an equitable one by virtue of fact that de- 
claratory, rather than investitive, relief is 
sought. Legette v. Smith, 226 S. C. 403, 85 
S. E. 2d 576 (1955). 

Right to jury trial of legal issues. — 
Where issues raised are legal and not 
equitable, either party entitled to jury trial, 
and this right may not be denied a litigant 



merely because his adversary has asked 
that the controversy be determined under 
declaratory relief procedure. Legette v. 
Smith. 226 S. C. 403, 85 S. E. 2d 576 (1955). 
Action for declaratory judgment to de- 
termine right of husband to inherit from 
wife he killed unintentionally while attempt- 
ing to kill another, raises issues essentially 
legal and not equitable, and husband had 
right to jury trial. Legette v. Smith, 226 
S. C. 403, 85 S. E. 2d 576 (1955). 



§ 10-2012. Further relief based on declaratory judgment. 

Stated in Bank for Savings and Trusts 
v. Towe, 231 S. C. 268, 98 S. E. 2d 539 
(1957). 

234 



1960 Cumulative Supplement 



§ 10-2101 



§ 10-2013. Chapter to be construed liberally. 

Stated in Bank for Savings and Trusts 
v. Towe, 231 S. C. 268, 98 S. E. 2d 539 
(1957). 

CHAPTER 25. 
Injunctions. 

§ 10-2055. Conditions under which temporary injunction granted. 

I. GENERAL CONSIDERATION. guishable. Epps v. Bryant, 218 S. C. 359, 

The terms "temporary injunction" and 62 S. E. 2d 832 (1950). 

"restraining order" are properly distin- 

§ 10-2055.1. When temporary injunction granted; copy of affidavit to be 
served. 
Quoted in Epps v. Bryant, 218 S. C. 359, 

62 S. E. 2d 832 (1950). 

§ 10-2055.2. Order to show cause why injuncton should not be granted; 

temporary restraint. 

A distinction exists between an order In accord with paragraph under this 

granting an injunction and an order aim- catchline in Code. See Epps v. Bryant, 
ply restraining, etc. 218 S. C. 359, 62 S. E. 2d 832 (1950). 



§ 10-2057. Security upon injunction; 

I. REQUIREMENTS AND 
JURISDICTION. 
Purpose of section. — The issuance of a 
temporary injunction is a drastic remedy, 
and the terms of this section are intended 
to provide for protection, in favor of the 
parties enjoined, in case the injunction 
should ultimately be deemed improper, and 
due compliance with these protective terms 
should always be required. Epps v. Bryant, 

218 S. C. 359, 62 S. E. 2d 832 (1950). 
However, the failure of the judge to re- 
quire the bond, etc. 

In accord with 1st paragraph under this 
catchline in Code. See Epps v. Bryant, 

§ 10-2059. Motion to vacate or modify 

This section authorizes a judge to in- 
crease the amount of an undertaking fixed 
in an injunction order granted on an ex 
parte application, upon a proper showing 
that said amount is inadequate for the pro- 
tection of the defendant. Epps v. Bryant, 

219 S. C. 307, 65 S. E. 2d 112 (1951). 
Unless such amount was fixed after due 

notice and hearing. — The amount of the 



how damages ascertained. 

218 S. C. 359, 62 S. E. 2d 832 (1950). 

Undertaking not required on simple re- 
straining order. 

In accord with paragraph under this 
catchline in Code. See Epps v. Bryant, 
218 S. C. 359, 62 S. E. 2d 832 (1950). 

Increasing amount of undertaking.— See 
note to § 10-2059. 

II. REMEDY FOR FAILURE 
TO GIVE BOND. 

Remedy when bond not required. 

In accord with paragraph under this 
catchline in Code. See Epps v. Bryant, 

218 S. C. 359, 62 S. E. 2d 832 (1950). 

injunction. 

bond cannot be increased where It has 
been fixed by the court after due notice 
and a hearing. Epps v. Bryant, 219 S. C. 
307, 65 S. E. 2d 112 (1951). 

When defendant has been heard this 
section does not apply. 

In accord with paragraph under this 
catchline in Code. See Epps v. Bryant 

219 S. C. 307, 65 S. E. 2d 112 (1951). 



CHAPTER 26. 

Mandamus. 



§ 10-2101. Return to be made to first 

Mandamus is employed to compel per- 
formance of a ministerial duty, and to war- 
rant its issuance there should be a clear and 
certain legal right in petitioner, a legal 
and ministerial duty of performance resting 
upon respondent, and no other specific 
remedy. Godwin v. Carrigan, 227 S. C. 216, 
87 S. E. 2d 471 (1955). 

Statutes of limitations do not apply to 



writ; time for answer. 

proceeding in mandamus, but where there is 
an unreasonable delay court in exercise of 
its discretion will refuse to issue writ. God- 
win v. Carrigan, 227 S. C. 216, 87 S. E. 2d 
471 (1955). 

Additional related cases. — As to manda- 
mus to compel municipality to condemn, 
see Godwin v. Carrigan, 227 S. C. 216, 87 
S. E. 2d 471 (1955). 



235 



Volume 1 



§ 10-2103 Code of Laws of South Carolina § 10-2255 

§ 10-2103. Place of trial; damages and costs. 

Cited in Fordham v. Fordham, 223 S. C. 
401, 76 S. E. 2d 299 (1953). 

CHAPTER 28. 

Partition. 

§ 10-2201. Partition compellable between joint tenants and tenants in com- 
mon. 

II. PARTITION AGREEMENTS. B. Trial. 

Valid partition of lands may be made by General order of reference proper in par- 

parol, where there is suihcient part per- tition suit where no issue of title involved 

formance to take transaction out of statute and person in possession sought specific 

of frauds, and actual possession is deemed performance of alleged contract of purchase 

most satisfactory evidence of part per- from holders of legal title. Turner v. Byars, 

formance. Wilson v. Cooper, 226 S. C. 538, 226 S. C. 289, 85 S. E. 2d 100 (1954). 
86 S. E. 2d 59 (1955). C. Parties. 

III. PLEADING AND PRACTICE. Necessary parties.— Person in possession 

A. In General. of premises and claiming an interest therein 

Court of equity empowered to appoint properly made party to partition suit 

receiver under certain circumstances in suit Turner v. Byars, 226 S. C. 289, 85 S. E. 2d 

to partition real property. Turner v. Byars, 100 (1954). 
226 S. C. 289, 85 S. E. 2d 100 (1954). 

§ 10-2205. Jurisdiction of common pleas; sale. 

Part of land may be allotted and re- v. Floyd, S. C. , 115 S. E. 2d 659 

mainder sold. — Court of equity under proper (1960). 

circumstances may allot part of land to Applied in Cooley v. Cooley, 222 S. C. 

one co-tenant and order remainder sold 513, 73 S. E. 2d 712 (1952). 
for division among other co-tenants. Bennett 

§ 10-2209. Allotment or sale. 

Applied in Cooley v. Cooley, 222 S. C. 
513, 73 S. E. 2d 712 (1952). 

§ 10-2210. Sale may be ordered without writ upon testimony taken. 

Applied in Cooley v. Cooley, 222 S. C. 
513, 73 S. E. 2d 712 (1952). 

§ 10-2211. Attorney's fees. 

Allowance of fees is discretionary. — Al- Supreme Court unless it is shown that 

lowance of fees under this section is within there has been an abuse thereof. Watson 

discretion of trial judge, and his exercise v. Little, 229 S. C. 486, 93 S. E. 2d 645 

of this discretion will not be disturbed by (1956). 

§ 10-2253. Action to annul charter of corporation brought by leave of court. 

Nature of business of corporation may evidence aliunde the charter as to nature 
be inquired into collaterally. — General rule of its business. Bean v. Piedmont Inter- 
that existence of a corporation cannot be state Fair Association, 222 F. 2d 227 
attacked collaterally on account of irregu- (1955). 
larities in its formation does not preclude 

§ 10-2254. Attorney General to bring action. 

Cited in Bean v. Piedmont Interstate 
Fair Association, 222 F. 2d 227 (1955). 

§ 10-2255. Leave to sue ; how obtained. 

Cited in Bean v. Piedmont Interstate 
Fair Association, 222 F. 2d 227 (1955). 



236 



§ 10-2256 



1960 Cumulative Supplement 



§ 10-2306 



CHAPTER 29. 

Quo Warranto and Scire Facias. 

§ 10-2256. Action against usurpers, for forfeiture of office or against per- 
sons acting as corporation. 

Section Inapplicable to suit for declara- be brought by the Attorney General in the 

tory judgment. — This section does not name of the State, or by a private party 

require that a suit for a declaratory judg- on leave granted by the circuit judge, 

ment to determine the validity of a statute Lee v. Clark, 224 S. C. 138, 11 S. E. 2d 

dealing with the election of school trustees 485 (1953). 

CHAPTER 30. 
Receivership and Other Provisional Remedies. 

§ 10-2301. Appointment. 

I. GENERAL CONSIDERATION. 

Receivership is drastic course allowed 
only under pressing circumstances and 
granted only with reluctance and caution. 
Vasiliades v. Vasiliades, 231 S. C. 366, 98 
S. E. 2d 810 (1957). 

Appointment of receiver is largely dis- 
cretionary with court to which application 
made, and revocation is likewise largely 
within its discretion. Vasiliades v. Vasili- 
ades, 231 S. C. 366, 98 S. E. 2d 810 (1957). 

Revocation of receivership discretionary. 
— In action by wife for administration of 
estate of intestate wherein receiver ap- 
pointed, and it was later made to appear 
that it had been adjudicated that she was 
not widow of decedent, it was a proper 
exercise of discretion of the court to revoke 
receivership. Vasiliades v. Vasiliades, 231 
S. C. 366, 98 S. E. 2d 810 (1957). 

And refusal of revocation under changed 
circumstances is also drastic. Vasiliades v. 
Vasiliades, 231 S. C. 366, 98 S. E. 2d 810 
(1957). 

This section is not invalid as an attempt 
on the part of the State to exercise the 
bankruptcy power, as there is no power 
under it to discharge the debtor from its 
debts. Stevens v. Carolina Scenic Stages, 
208 F. 2d 332 (1953). 

Appointment not subject to collateral 
attack in bankruptcy court. — If there was 
error in the appointment of a receiver un- 

§ 10-2302. Not appoint without notice. 

Cited in Wrenn v. Wrenn, 228 S. C. 588, 
91 S. E. 2d 267 (1956). 

§ 10-2305. No receiver to be appointed before judgment when bond offered. 

Applied in Vasiliades v. Vasiliades, 231 
S. C. 366, 98 S. E. 2d 810 (1957). 

§ 10-2306. Bond given after appointment; return of property. 

Appointment of receiver nullified by Vasiliades. 231 S. C. 366, 98 S. E. 2d 810 
posting of bond by party in possession or (1957). 
party claiming property. Vasiliades v. 



der this section, it would not be a matter 
which would subject the appointment to 
collateral attack in the court of bankruptcy, 
since the appointing court had jurisdiction 
of the subject matter and the parties. 
Stevens v. Carolina Scenic Stages, 208 F. 
2d 332 (1953). 

Bankruptcy court en-ed in entering turn 
over order to State court receiver. — Wher« 
receiver was appointed by State court more 
than four months prior to proceedings in 
bankruptcy under Chapter XI, 11 U. S. 
C. A. §§ 701 et seq., it was error on the 
part of the bankruptcy court to enter an 
order directing the receiver to turn over 
to debtor the property held by him as re- 
ceiver. Stevens v. Carolina Scenic Stages, 
208 F. 2d 332 (1953). 

Cited in Fagan v. Timmons, 217 S. C. 
432, 60 S. E. 2d 863 (1950). 

IV. SUBDIVISION (4). 

Purpose bona fide liquidation. In accord 
with paragraph under this catchline in Code. 
See Stevens v. Carolina Scenic Stages, 208 
F. 2d 332 (1953). 

Cited in Clark v. Preferred Accident In- 
surance Company, 231 S. C. 167, 97 S. E. 
2d 498 (1957). 

V. SUBDIVISION (S) 

Court may appoint receiver in partner- 
ship dissolution, and facts of particular case 
should govern. Wrenn v. Wrenn, 228 S. C. 
588, 91 S. E. 2d 267 (1956). 



237 



§ 10-2309 Code of Laws ok South Carolina § 10-2421 

§ 10-2309. How damages ascertained if receiver is improperly appointed. 

Where receiver obtained possession of no pensation and attorney's fee. Vasiliades v. 
property, and bond filed pursuant to § Vasiliades, 231 S. C. 366, 98 S. E. 2d 810 
10-2306, he was not entitled to costs, com- (1957). 

CHAPTER 31. 

Recovery of Real Property. 

Article 5. Sec. 

Determination Whether Life Tenant, etc, 10-2455. Guardian, etc., may prove minor, 

Be Alive or Dead. etc., alive. 

Sec. 10-2457. Heirs, etc., may recover damages. 

10-2454. Rights preserved when it appears 
that concealed or absent person 
sought is living. 

Article 1. 
General Provisions. 
§ 10-2401. Who may bring action to determine adverse claim. 

This section and §§ 10-2403 to 10-2411 10-2014. Waller v. Waller, 220 S. C. 212, 

extend the scope of the ancient suit to 66 S. E. 2d 876 (1951). 
quiet title, resulting in a judgment of a One not in possession cannot maintain 

declaratory nature. Waller v. Waller, 220 action to remove cloud on title against an- 

S. C. 212, 66 S. E. 2d 876 (1951). other in possession. Priester v. Brabham, 

They were not repealed by the Uniform 230 S. C. 201, 95 S. E. 2d 167 (1956). 
Declaratory Judgments Act, §§ 10-2001 to 

§ 10-2404. Service on unknown parties. 

Applied in Caine v. Griffin, 233 S. C. 562, 
103 S. E. 2d 37 (1958). 

Article 2. 

Possession and Adverse Possession. 

§ 10-2421. When possession presumed; when occupation deemed under le- 
gal title. 

I. GENERAL CONSIDERATION. laches since rights of parties determinable 
Question of adverse possession ordinarily under time limitations prescribed by this 
one of fact for jury and only becomes one section and 10-124, and laches within pe- 
of law for court when evidence undisputed riod of statute of limitations is no defense 
and susceptible of but one inference. Lynch at law. Crotwel! v. Whitney, 229 S. C. 213, 
v. Lynch, S. C. ,115 S. E. 2d 301 92 S. E. 2d 473 (1956). 
(1960). A private easement may be lost by ad- 
Issue of title by adverse possession is verse possession. Outlaw v. Moise, 222 S. 
one of law, and Supreme Court's factual re- C. 24, 71 S. E. 2d 509 (1952). 
view of it is limited to determination of But title to property dedicated to and 
whether there was any evidence reasonably used by the public for streets and highways 
sustaining judgment of lower court. Seagle cannot be acquired by prescription or ad- 
v. Montgomery, 227 S. C. 436, 88 S. E. verse possession as against the State or 
2d 357 (1955); Crotwell v. Whitney, 229 any of its political subdivisions. Outlaw v. 
S. C. 213, 92 S. E. 2d 473 (1956). Moise, 222 S. C. 24, 71 S. E. 2d 509 (1952). 
Title by adverse possession and by estop- Adverse possession of railroad right of 
pel may be acquired at same time.— There way.— Right of way of railroad, having been 
was no inconsistency in submitting to jury acquired for a public purpose cannot be lost 
under evidence in this case defenses of title by prescr jp tive use or adverse possession 
by adverse possession and title by estoppel. un , ess b erection of permanent structure 
Southern Railway-Carolina Div. v. Home accompanied b notice to rai!road company 
(K' of ^tention to claim adversely to its right, 
Laches within period of statute of liml- and ^ch may be implied or inferred from 
tations is no defense at law.— In action by construction, maintenance and unwter- 
holders of legal title to recover land to rupted possession of permanent buildings 
which defendants could base their claim enclosed by substantial fence for more than 
only upon adverse possession, defendants statutory period without objection from 
could not invoke equitable defense of railroad company. Southern Railway — Caro- 

238 



§ 10-2421 



1960 Cumulative Supplement 



§ 10-2421 



lina Div. v. Home Invest. Co., 233 S. C. 
440, 105 S. E. 2d 527 (1958). 

Statute does not run against remainder- 
man until death of life tenant. Crotwell v. 
Whitney, 229 S. C. 213, 92 S. E. 2d 473 
(1956). 

Applied in Fogle v. Void, 223 S. C. 83, 
74 S. E. 2d 358 (1953); Woodside Mills v. 
United States, 260 F. 2d 935 (1958). 
II. PRESUMPTION OF POSSESSION. 

Proof of legal title raises presumption of 
possession for ten years. — In accord with 
paragraph under this catchline in Code. See 
Lynch v. Lynch, S. C. , 115S. E. 2d 

301 (1960). 

Burden of proof on adverse claimant. — 
Possession is presumed to follow legal 
title, and burden is on adverse claimant to 
prove all facts necessary to establish ad- 
verse possession including extent of posses- 
sion. Lynch v. Lynch, S. C. ,115 
S. E. 2d 301 (1960). 

III. ADVERSE POSSESSION. 
A. Elements. 
I. Possession. 

The payment of taxes does not confer 
title, but it may be an important factor 
with reference to adverse possession, and 
also ouster by a cotenant, for it shows that 
the claimant from the beginning claimed 
title to the land in severability, having re- 
turned it in his own name, and having paid 
the taxes thereon. Brevard v. Fortune, 221 
S. C. 117, 69 S. E. 2d 355 (1952). 

And failure to pay taxes may be evidence 
that no claim was made. — A person in 
order to prove title by adverse possession 
docs not have to show the payment of 
taxes on the land that he claims. How- 
ever, the failure to pay taxes may be re- 
garded as a circumstance that weakens a 
claim of ownership, or as evidence that no 
claim was made. Harrelson v. Reaves, 219 
S. C. 394, 65 S. E. 2d 478 (1951); Ter- 
williger v. White, 222 S. C. 176, 72 S. E. 
2d 169 (1952). 

2. Continuous Period. 

Also possession of the heir may be 
tacked, etc. 

In accord with paragraph under this 
catchline in Code. See Terwilliger v. 
Daniels, 222 S. C. 191, 72 S. E. 2d 167 
(1952); TenvilhVer v. White, 222 S. C. 176, 
72 S. E. 2d 169 (1952). 

Where one of two or more heirs con- 
tinues the occupation he had maintained 
under his ancestor who was an adverse 
holder, it will be presumed, nothing appear- 
ing to the contrary, that the possession of 
this heir is for the benefit of all the estate 
and in the right of the other heirs as well. 
And if the heir claims against a third party 
solely in his own right his possession can 
be tacked to that of the ancestor, provided 
the evidence tends either to sustain an 
ouster of his cotenant, or that his posses- 
sion was also the possession of the other 



heirs, as cotenants and equally for their 
benefit. Terwilliger v. Marion, 222 S. C. 
185, 72 S. E. 2d 165 (1952). 

Although the grantee of a disseisor can- 
not unite his possession, etc. 

The possession of the grantor cannot be 
tacked on to that of the grantee so as to 
defeat the title of the true owner. Adams 
v. Adams, 220 S. C. 131, 66 S. E. 2d 809 
(1951). 

Possession of heir may not be tacked to 
that of beneficiary of secret trust. — An heir 
of alleged beneficiary of secret trust, where 
trustee has been in possession of land under 
color of title in himself individually, may 
not establish adverse possession by tack- 
ing his alleged beneficial interest to that 
of his ancestor, since that would open wide 
the door to fraud. Crotwell v. Whitney, 
229 S. C. 213, 92 S. E. 2d 473 (1956). 
3. Hostile Holding. 

Adverse possession is hostile possession 
and hostile possession is possession with 
intention to dispossess owner. Lynch v. 
Lvnch, S. C. , 115 S. E. 2d 301 

(1960). 

An entry under a parol gift of land, 
though permissive and friendly in the pop- 
ular sense, is hostile and adverse to the 
paper title in the legal sense, because there 
is an assertion of ownership in the occu- 
pant. Harrelson v. Reaves, 219 S. C. 394, 
65 S. E. 2d 478 (19511; Brevard v. For- 
tune, 221 S. C. 117, 69 S. E. 2d 355 (1952). 

Encroachment must be with intention to 
claim and hold adversely. — Where adjoining 
landowner in possession of land up to a 
supposed line intends to claim only to true 
line, his possession not hostile, does not 
form basis for adverse possession and will 
not ripen into title. Lynch v. Lynch, 
S. C. , 115 S. E. 2d 301 (1960). 
4. Generally. 

Proof. — In order to constitute adverse 
possession, which results in obtaining title 
to property, the possession must be actual, 
open, notorious, hostile, continuous, and 
exclusive for whole statutory period. — 
Lynch v. Lynch, S. C. ,115 S. E. 2d 

301 (1960). 

Proof. — Claimant of title by adverse 
possession against owner of legal title 
must prove continuous, hostile, open, ac- 
tual, notorious and exclusive possession by 
him, or by one or more persons through 
whom he claims, for full statutory period 
of ten years, without tacking of possession 
except by descent cast. Crotwell v. Whit- 
ney, 229 S. C 213. 92 S. E. 2d 473 (1956). 
B. Illustrations. 

The occupancy of a licensee is manifestly 
that of the licensor. Brevard v. Fortune, 
221 S. C. 117, 69 S. E. 2d 355 (1952). 

And the possession of a grantor is that 
of a tenant or trustee of his grantee. 

By the execution and delivery of a deed 
of land, the entire legal interest in the 



239 



5 10-2421 



s 



Code of Laws of South Carolina 



§ 10-2421 



premises vests in the grantee, and, if the 
grantor continues in possession afterward, 
his possession will be that either of tenant 
or trustee of the grantee. He will be re- 
garded as holding the premises in subser- 
viency to the grantee, and nothing short of 
an explicit disclaimer of such relation, and 
a notorious assertion of right in himself, 
will be sufficient to change the character of 
his possession and render it adverse to the 
grantee. Love v. Turner, 78 S. C. 513, 59 
S. E. 529 (1906); Griggs v. Griggs, 199 S. 
C. 295, 19 S. E. 2d 477 (1942); Terwilliger 
v. White, 222 S. C. 176, 72 S. E. 2d 169 
(1952). 

Mortgagee as against mortgagor. — To 
perfect title by adverse possession in a 
mortgagee as against the mortgagor, the 
adverse acts relied upon by mortgagee 
must be such as to give notice that he is 
claiming as owner, not a mortgagee. Dun- 
ham v. Davis, 229 S. C. 29, 91 S. E. 2d 
716 (1956). 

And the general rule is that the posses- 
sion of one cotenant is the possession of 
all (which is a variation of the rule that 
unexplained possession raises a presump- 
tion of adverse possession). Knotts v. 
Joiner, 217 S. C. 99, 59 S. E. 2d 850 (1950). 

Possession of one cotenant presumed to 
be possession of all, but this presumption 
ceases from moment such possession be- 
comes adverse to other cotenants, which 
possession must be of such actual, open, 
notorious, exclusive and hostile character as 
to amount to an ouster of other cotenants. 
Home v. Cox, S. C. , 115 S. E. 2d 

513 (1960). 

Actual ouster by cotenant necessary. — 
To establish title by tenant in common by 
adverse possession, actual ouster and an 
exclusion of other tenants from possession 
must be shown and acts relied upon to 
establish such ouster must be of an un- 
equivocal nature and so distinctly hostile to 
rights of other cotenants that intention of 
ouster clear and unmistakable. Home v. 
Cox, S. C. , 115 S. E. 2d 513 (1960). 

And title by adverse possession may be 
acquired only after ouster. — Title by ten 
years' adverse possession by a cotenant 
against another may be acquired only after 
actual ouster of which the latter has no- 
tice, or should have in the exercise of 
reasonable diligence and vigilance. Wat- 
son v. Little, 224 S. C. 359, 79 S. E. 2d 384 
(1953). 

Physical ouster of other cotenants is not 
necessary to render one cotenant's posses- 
sion adverse. — While a physical ouster, or 
"turning out by the heels," as some of 
the judges have termed it, is not necessary 
in establishing title in a tenant in common 
by adverse possession, nevertheless an ac- 
tual ouster and an exclusion of the other 
tenants from possession must be shown. 
The acts relied on to establish an ouster 



must be of an unequivocal nature, and so 
distinctly hostile to the rights of the other 
cotenants that the intention to disseize is 
clear and unmistakable. Brevard v. For- 
tune, 221 S. C. 117, 69 S. E. 2d 355 (1952), 
quoting Wells v. Coursey, 197 S. C. 483, 
15 S. E. 2d 752 (1941). 

But possession must be such as to amount 
to ouster. — In order that one of several 
cotenants may acquire title by adverse pos- 
session as against the others, his posses- 
sion must be of such actual, open, noto- 
rious, exclusive and hostile character as to 
amount to an ouster of the other cotenants. 
Wells v. Coursey, 197 S. C. 483, 15 S. E. 
2d 752 (1941); Brevard v. Fortune, 221 
S. C. 117, 69 S. E. 2d 355 (1952). Ter- 
williger v. Marion, 222 S. C. 185, 72 S. E. 
2d 165 (1952). 

The hostile character of the possession 
must be such as to amount to an ouster 
of the other cotenant or cotenants and 
must be clearly and unmistakably estab- 
lished by the evidence. While the posses- 
sor need not give express notice of the 
hostility of his possession to the other or 
others, the nature of it must be brought 
home to the other owner or owners. 
Ouster is presumed from possession only 
if it is continued for a period of twenty 
years. Watson v. Little, 224 S. C. 359, 79 
S. E. 2d 384 (1953). 

The statute must operate prospectively 
from the time of ouster, whenceforward 
the possession of the claiming cotenant 
must conform to the requirements of ad- 
verse possession in order to ripen title in 
him. Watson v. Little, 224 S. C. 359, 79 
S. E. 2d 384 (1953). 

And proof of exclusive possession for the 
statutory period raises a presumption of 
ouster, etc. 

In accord with paragraph under this 
catchline in Code. See Knotts v. Joiner, 
217 S. C. 99, 59 S. E. 2d 850 (1950). 

The open, notorious, continuous, hostile 
and exclusive possession by one tenant in 
common with the use and exercise of au- 
thority incident to exclusive and adverse 
ownership for a period of twenty years 
presumes ouster, and to acquire such pos- 
session an heir may tack his possession to 
that of his ancestor. Wells v. Coursey, 
197 S. C. 483, 15 S. E. 2d 752 (1941); 
Brevard v. Fortune, 221 S. C. 117, 69 S. 
E. 2d 355 (1952). 

Ouster is presumed from possession 
only if it is continued for a period of 
twenty years. Watson v. Little, 224 S. C. 
359. 79 S. E. 2d 384 (1953). 

Ouster of cotenants rarely implied from 
exclusive possession, collection of rents, and 
improvements of property by one cotenant. 
Home v. Cox, S. C. , 115 S. E. 2d 

513 (1960). 

And grantee of cotenant may hold ad- 
versely to other cotenants. 



240 



§ 10-2425 1960 Cumulative Supplement § 10-2457 

In accord with paragraph under thi» justified in assuming this to be the case. 

catchline in Code. See Knotts v. Joiner, Knotts v. Joiner, 217 S. C. 99, 59 S. E. 

217 S. C. 99, 59 S. E._ 2d 850 (1950). 2d 850 (1950). 

However, possession under deed con- But minority of one cotenant will pre- 

veying merely interest of grantor is prima vent operation of statute, 

facie not adverse. — If a conveyance pur- In accord with 1st paragraph under this 

ports to be, not of the entire interest in catchline in Code. See Adams v. Adami, 

the property, but of the interest of the 220 S. C. 131, 66 S. E. 2d 809 (1951). 

grantor merely, the possession of the gran- Evidence insufficient to show title by 

tee is prima facie like that of his grantor, adverse possession, Phillips v. DuBosa, 

that of a cotenant only, and not adverse 223 S. C. 224, 75 S. E. 2d 56 (1953). 
to the other cotenant, and the latter is 

§ 10-2425. Adverse possession under claim of title not written. 

Claimant may rely on fence erected by not deprive adverse claimant of the benefit 
another. — That a fence may have been of this section. Seagle v. Montgomery, 227 
erected by the adjoining landowner does S. C. 436, 88 S. E. 2d 357 (1955). 

Article 5. 
Determination Whether Life Tenant, etc., Be Alive or Dead. 

§ 10-2454. Rights preserved when it appears that concealed or absent person 
sought is living. 
In case it should afterwards appear that the person sought was living at the 
time proceedings under §§ 10-2451 to 10-2453 were had, such person or any person 
claiming title under or through such person concealed or absent may re-enter upon 
his estate and may have an action of damages for the rents and profits during 
eviction. 

1942 Code § 873; 1932 Code § 873; Civ. P. '22 § 821; Civ. C. *12 § 4059; Civ. C. '02 
i 2958; G. S. 2278; R. S. 2418; 1712 (2) 561; 1956 (49) 1601. 

Effect of amendment. — The 1956 amend- for "§§ 57-11 to 57-14" and eliminated 
ment substituted "§§ 10-2451 to 10-2453" "any" before "proceedings." 

§ 10-2455. Guardian, etc., may prove minor, etc., alive. 

Nothing contained in §§ 10-2451 to 10-2453 shall prevent any guardian, husband 
or trustee from showing by satisfactory proof that the person sought was actually 
living at the time proceedings for a view of such person were commenced. 

1942 Code § 874; 1932 Code § 874; Civ. P. '22 § 822; Civ. C. '12 §4060; Civ. C. '02 | 
2959; G. S. 2279; R. S. 2419; 1712 (2) 561; 1956 (49) 1601. 

Effect of amendment. — The 1956 amend- 
ment substituted "§§ 10-2451 to 10-2453" 
for "§§ 57-11 to 57-14." 

§ 10-2457. Heirs, etc., may recover damages. 

Every person, his executors or administrators, who are, or shall be, entitled to 
any such lands, tenements and hereditaments, upon or after the determination of 
such particular estates or interests, may recover as damages for such unlawful hold- 
ing the full value of the profits received during such wrongful possession and such 
recovery may be had against the person holding over or his executors or ad- 
ministrators. 

1942 Code § 876; 1932 Code § 876; Civ. P. '22 § 824; Civ. C. '12 § 4062; Civ. C '02 
§ 2961; G. S. 2281; R. S. 2421; 1712 (2) 563; 1956 (49) 1601. 

Effect of amendment. — The amendment 57-16" and provided that recovery may be 
based recovery on "unlawful holding" in- against person holding over instead of 
stead of "holding over as provided in § same being mandatory and permissive. 



241 



§ 10-2501 Code of Laws of South Carolina § 10-2515 

CHAPTER 32. 
Recovery of Personal Property. 

§ 10-2501. When plaintiff may claim immediate delivery. 

Demand necessary. — If defendant is in And voluntary appearance by defendant 

possession, he cannot be made liable in does not validate wrongful seizure. — While, 

action of claim and delivery until demand by filing a petition in the cause attacking 

and refusal, so long as he simply retains the validity of the proceedings, defendant 

possession. Royal-Liverpool Insurance voluntarily appeared and waived the neces- 

Group v. McCarthy, 229 S. C. 72, 91 S. sity of a summons, where this occurred four 

E. 2d 881 (1956). days after the property had been seized it 

Summons must be issued before proceed- did not have the effect of validating the 

Ing commemed. — Under the terms of this wrongful seizure. Plowden v. Mack, 217 S. 

section a pi-oceeding to obtain immediate C. 226, 60 S. E. 2d 311 (1950). 

delivery of property may not be com- But the requirements of this section 

menced until the summons has been issued, need not be met unless plaintiff desires to 

Plowden v. Mack, 217 S. C. 226, 60 S. E. obtain immediate possession. The proce- 

2d 311 (1950). dure set forth in these sections constitutes 

And this provision is mandatory. — The solely a subsidiary or ancillary remedy 
provision of this section that the summons which the plaintiff may at his option pur- 
must be issued before the proceeding for sue. Plowden v. Mack, 217 S. C. 226, 
immediate possession is commenced is 60 S. E. 2d 311 (1950). 
mandatory. Thus where no summons was And plaintiff is entitled to have his ac- 
issued until four days after the property tion for possession of property tried though 
was seized by the sheriff, this omission seizure was illegal. Plowden v. Mack, 217 
invalidated the seizure. Plowden v. Mack, S. C. 226, 60 S. E. 2d 311 (1950). 
217 S. C. 226, 60 S. E. 2d 311 (1950). 

§ 10-2503. Affidavit and its requisites. 

And is not necessary unless immediate Verified complaint may be used to aug- 

delivery claimed. ment affidavit. Plowden v. Mack, 217 S. 

In accord with paragraph under this C. 226, 60 S. E. 2d 311 (1950). 

catchline in Code. See Plowden v. Mack, Cited in Rhode v. Ray Waits Motors, 

217 S. C. 226, 60 S. E. 2d 311 (1950). 223 S. C. 160, 74 S. E. 2d 823 (1953). 

§ 10-2504. Requisition to sheriff to take and deliver property. 

Requirements of section need not be 60 S. E. 2d 311 (1950). 

met unless plaintiff desires immediate pos- Cited in Rhode v. Ray Waits Motors, 

•enaion. Plowden v. Mack, 217 S. C. 226, 223 S. C. 160, 74 S. E. 2d 823 (1953). 

§ 10-2505. When sheriff to take property ; security required. 

Bond not mandatory unless immediate cantile Company v. Redd, 231 S. C. 466, 

possession desired. 99 S. E. 2d 57 (1957). 

In accord with paragraph under this Magistrate's constable has no authority 

catchline in Code. See Plowden v. Mack, to seize property in claim and delivery ac- 

217 S. C. 226, 60 S. E. 2d 311 (1950). tion in court of common pleas. Atty. Gen. 

A judgment of the kind contemplated by Op. Aug. 24, 1957. 

the bond is, from an evidentiary standpoint, Cited in Rhode v. Ray Waits Motors, 

conclusive against surety. L. B. Price Mer- 223 S. C. 160, 74 S. E. 2d 823 (1953). 

§ 10-2507. Service of papers on defendant. 

Requirements of section need not be session. Plowden v. Mack, 217 S. C. 226, 

met unless plaintiff desires immediate pos- 60 S. E. 2d 311 (1950). 

§ 10-2510. When defendant entitled to re-delivery. 

Judgment in claim and delivery in the der this section. Floyd v. Burden, 226 S. C. 

alternative inappropriate where defendant 512, 85 S. E. 2d 861 (1955). 
did not give bond to retain possession un- 

§ 10-2515. Claim of property by third person. 

Cited in Floyd v. Burden, 226 S. C. 512, 
85 S. E. 2d 861 (1955). 



242 



8 10-2516 



1960 Cumulative Supplement 



§ 10-2551 



§ 10-2516. What judgment for. 

I. GENERAL CONSIDERATION. 

Object of section. — In accord with 2nd 
paragraph under this catchline in Code. 
See Washington v. Western Auto Supply 
Company, 230 S. C. 424, 96 S. E. 2d 63 
(1957). 

Judgment in claim and delivery in the 
alternative inappropriate where defendant 
did not give bond to retain possession 
under § 10-2510. Floyd v. Burden, 226 S. C. 
512, 85 S. E. 2d 861 (1955). 

Successful defendant in claim and de- 
livery action may not maintain independent 
action for damages. — Defendant in claim 
and delivery action, who has been awarded 
possession of the property or its value, 
may not thereafter maintain an independent 



action to recover damages for the taking 
and detention of such property. Washing- 
ton v. Western Auto Supply Company, 230 
S. C. 424, 96 S. E. 2d 63 (1957). 

Entering money judgment only waive* 
right to return of property. — Proper form 
for entry of judgment is that defendant re- 
cover of the plaintiff the possession of the 
property or, in case delivery cannot be had 
for its value in the amount found, but 
where successful defendant entered uncon- 
ditional money judgment, right to return 
of property was waived and election made 
to take judgment for its value. Washington 
v. Western Auto Supply Company, 230 
S. C. 424. 96 S. E. 2d 63 (1957). 



CHAPTER 33. 

Remedies of Minors, Incompetents and Females. 

Adoption. 

of court and change of 



Article 1. 
Payment of Money Due Minors or Other 

Incompetents. 
Sec. 

10-2551. Court may order when not over 
one thousand dollars involved in 
an estate or decree; discharge of 
committee or guardian. 
Article 3. 



10-2584. Order 
name. 

10-2586.1. Clerks of court to report adop- 
tion decrees to State registrar of 
vital statistics. 

10-2587. Gift to adopted illegitimate child. 



Article 1. 

Payment of Money Due Minors or Other Incompetents. 

§ 10-2551. Court may order when not over one thousand dollars involved 
in an estate or decree; discharge of committee or guardian. 

When ( 1 ) a minor or other incompetent becomes entitled to a sum of money not 
exceeding one thousand dollars in the settlement of an estate or under the judgment, 
order or decree of any court, (2) he has no general or testamentary guardian or 
committee to whom such sum may be paid and (3) his estate, however derived, 
is in the judgment of the court in which the settlement is made or the judgment, 
order or decree is rendered too small to warrant the expense of the appointment 
of a guardian or committee, such court or the judge thereof may make an order for 
the same to be paid him or his father or mother, or if his father and mother be dead, 
to some other person for his benefit as to such court or judge may seem best. When 
a guardian or committee has been appointed for a minor or other incompetent and 
an accounting is filed with the probate court and the corpus then remaining for his 
benefit is one thousand dollars or less the court in its discretion may order the 
corpus to be paid to him or his father or mother or if his father or mother be 
dead to some other person for his benefit as to such court may seem best, after 
which the guardian or committee may be discharged as provided by law. 

1942 Code § 350: 1932 Code § 350; Civ. P. '22 § 306; Civ. C. '12 § 3939; Civ. C. '02 § 
2836; 1900 (23) 348: 1901 (23) 635; 1910 (26) 683; 1933 (38) 269; 1945 (44) 234; 1959 
(51) 344; 1960 (51) 1632. 

Effect of amendments. — The 1959 amend- from five hundred dollars, 
ment added other incompetents and in- The 1960 amendment added the last 

creased amount pay to one thousand dollars ="ntenre. 



243 



§ 10-2581 Code of Laws of South Carolina § 10-2587 

Article 3. 

Adoption. 

§ 10-2581. Petition for adoption. 

Adoption exists in this State only by vir- Alexander, 230 S. C. 286, 95 S. E. 2d 500 

tue of statutory law. Driggers v. Jolley, (1956). 

219 S. C. 31, 64 S. E. 2d 19 (1951). ' Consent of parent not required.— This 

Adoption was unknown to the common article does not require actual consent of a 

law and is purely statutory. Wright v. parent as a prerequisite to adoption. Atty. 

Gen. Op., May 26, 1959. 

§ 10-2583. Process and guardian ad litem. 

Cross reference. — As to service by publi- diligence in adoption proceedings, see § 
cation on nonresident defendant or when 10-451. 
service cannot be made in State after due 

§ 10-2584. Order of court and change of name. 

The court, upon an examination into the merits of the petition either in open 
court or upon reference may grant the prayer thereof upon such terms as may 
to the court seem proper and the name of the child shall be changed, if so pro- 
vided in the decree. 

1942 Code § 8679; 1932 Code § 8679; Civ. C. '22 § 5578; Civ. C. '12 § 3798; Civ. C. 
'02 § 2704; R. S. 2204; 1882 (21) 79; 1896 (22) 199; 1900 (23) 429; 1907 (25) 581; 1911 
(27) 144; 1954 (48) 1763. 

Cross reference. — See § 19-52.11, inheri- Effect of amendment. — Amendment 

tance by or from adopted children. eliminated all after the word "decree." 

§ 10-2585. Restrictions on adoption of illegitimate child. 

§ 20-7 defines who may not lawfully con- of unmarried Greek parents. Atty. Gen. Op., 
tract matrimony, and there is nothing in Jun. 17, 1959. 
this section to prevent adoption of children 

§ 10-2586.1. Clerks of court to report adoption decrees to State registrar of 

vital statistics. 

For each adoption or annulment of adoption, the clerk of court of the particular 
county shall prepare, within thirty days after the decree becomes final, a certificate 
of such decree on a form furnished by the State registrar of vital statistics. Before 
the fifteenth day of each calendar month, the clerk shall forward to the State 
registrar the certificates prepared by him during the preceding calendar month. 

1956 (49) 1735. 

§ 10-2587. Gift to adopted illegitimate child. 

No person who adopts any illegitimate child shall give to such child by deed 
or otherwise except by will any greater portion of his estate than is allowed by 
law unless such person has no lawful wife or issue living at the time of his death. 

1942 Code § 8679; 1932 Code § 8679; Civ. C. *22 § 5578; Civ. C. '12 § 3798; Civ. C. 
•02 § 2704; R. S. 2204; 1882 (21) 79; 1896 (22) 199; 1900 (23) 429; 1907 (25) 581; 1911 
(27) 144; 1954 (48) 1763. 

Effect of admendment. — Inheritance by nated by A. & J. R. 1954(48) 1763. See { 
adopted illegitimate child provisions elimi- 19-52.11. 



244 



§ 11-68 1960 Cumulative Supplement § 11-101 

Title 11. 

Contracts and Agency. 

Chap. 2. Gambling and Future Contracts, etc., § 11-68. 

7. Agents Acting after Death of Principal, § 11-302. 

CHAPTER 2. 

Gambling and Future Contracts, Etc. 

Article 2. 
Contracts for Future Delivery. 
Sec. 

11-68. Assistance in making contracts or 
operating bucket shop a misde- 
meanor. 

Article 2. 

Contracts for Future Delivery. 

§ 11-68. Assistance in making contracts or operating bucket shop a misde- 
meanor. 

Any person who, either as agent or principal, enters into or assists in making 
any contract of sale of the sort or character denounced in § 11-62 for the future 
delivery of cotton, grain, stocks or other commodities or who maintains a bucket 
shop shall be guilty of a misdemeanor and upon conviction shall be imprisoned in 
the Penitentiary not exceeding two years. 

1942 Code § 6318; 1932 Code § 6318; 1928 (35) 1321; 1960 (51) 1602. 

Effect of amendment. — The 1960 amend- 
ment substituted misdemeanor for felony. 

CHAPTER 3. 

Statutes oe Frauds. 

§ 11-101. Agreements required to be in writing. 

I. GENERAL CONSIDERATION. Waiver must be evidenced by memo- 
Court of equity will not permit statute randum. — Where papers evidencing agree- 
designed to prevent frauds to be used as ment not performable within one year, 
instrument to effect a fraud. Aust v. Beard, which were insufficient to constitute the 
230 S. C. 515, 96 S. E. 2d 558 (1957). required memorandum, lack even sugges- 
Failure or refusal to perform is not tion of waiver of provision in original con- 
fraud taking contract out of statute. — A tract, parol evidence could not be used to 
mere failure or refusal to perform an oral implant it there. Southern States Life In- 
contract. within the statute of frauds, is surance Co. v. Foster, 229 F. 2d 77 (1956). 
not such fraud as will take the case out cited in Turbeville v. Gordon, 233 S. C. 
of the operation of the statute, and this is 75, 103 S. E. 2d 521 (1958); Gaines W. 
ordinarily true even though the other party Harrison & Sons, Inc. v. J. I. Case Corn- 
has changed his position to his injury. pany> 1S0 F Supp 2 43 (1960). 
United Merchants & Manufacturers v. IV CONTRACTS RELATING 
South Carolina Elec, etc., Co., 113 F. <Pq land 
Supp. 257 (1°|3). Protection of statute denied if uncon- 
Statute of frauds may not be set up as sc ionable.-Party sought to be charged 
protection of fraud.-Statute of frauds being j contract for sale o{ ]and wil f be 
designed as a protection against fraud, denied protection of statute where other 
equity will not allow it to be set up as t has dope such acts m pursuance of 
protection or support o fraud, and although and ,; £ . y 
equity will not execute, specifically, con- ?t • *,• *•"■•«"•«■ "»»**••» «hi"» 
tracts concerning lands which are not mani- catl0n , f^'nst his claim would be uncon- 
tested in writing as required by this sec- scionable. Scurry v. Edwards, 232 S. C. 53, 
tion, it will cancel conveyances obtained by '00 S. E. 2d 812 C1957). 
fraudulent misrepresentations in parol, or A parol gift of land does not and can- 
impose upon legal owners character of not ipso facto transfer the title to the land, 
trustees. Gardner v. Nash, 225 S. C. 303, 82 Brevard v. Fortune, 221 S. C. 117, 69 S. E. 
S. E. 2d 123 (1954). 2d 355 (1952). 

245 



§ 11-101 



Code of Laws of South Carolina 



§ 11-101 



But it may ripen into title by adverse 
possession. — It is well established in this 
State that a parol gift of land may ripen 
into title where accompanied by actual 
possession for the statutory period, with 
claim of ownership, and under such a gift 
the donee's possession is adverse from its 
inception. Harrelson v. Reaves, 219 S. C. 
394, 65 S. E. 2d 478 (1951); Brevard v. 
Fortune, 221 S. C. 117, 69 S. E. 2d 355 
(1952). 

Equity will nullify conveyances obtained 
by fraudulent misrepresentations in parol. — 
Statute of frauds being designed as a pro- 
tection against fraud, equity will not allow 
it to be set up as protection or support of 
fraud, and although equity will not execute, 
specifically, contracts concerning lands 
which are not manifested in writing as re- 
quired by this section, it will cancel con- 
veyances obtained by fraudulent misrepre- 
sentations in parol, or impose upon legal 
owners character of trustees. Gardner v. 
Nash 225 S. C. 303, 82 S. E. 2d 123 (1954). 

Parol agreement to purchase for another 
at judicial sale. — In absence of fraud in sale 
and action merely for enforcement of oral 
agreement whereby purchaser agreed to 
bid in land at judicial sale and later, upon 
being reimbursed, reconvey same to mort- 
gagor-debtor, the statute of frauds would 
not allow the agreement to be established 
by parol. Gardner v. Nash, 225 S. C. 303, 
82 S. E. 2d 123 (1954). 

Nor to person who agreed to bid for 
another at auction. 

In accord with paragraph under this 
catchline in Code. See Gardner v. Nash, 
225 S. C. 303, 82 S. E. 2d 123 (1954). 

Oral contract to which this section not 
applicable enforceable against seller's heirs. 
— Partial performance having removed bar 
of this section, oral contract for sale of real 
estate was good as between seller and pur- 
chaser, and after death of seller pur- 
chaser's rights under the contract were en- 
forceable against seller's heirs. Scurry v. 
Edwards, 232 S. C. 53, 100 S. E. 2d 812 
(1957). 

Applied in Smith v. Traxler, 224 S. C. 
290, 78 S. E. 2d 630 (1953). 

Cited in Owens v. Sweat, 227 S. C. 112, 
86 S. E. 2d 886 (1955); Julius Kayser & 
Co. v. Textron Incorporated, 132 F. Supp. 
49 (1955). 

V. AGREEMENT NOT TO BE 

PERFORMED WITHIN 

YEAR. 

The statute of frauds is a complete de- 
fense to a claim for damages that the de- 
fendant has breached an oral contract that 
could not be performed within the spare 
of a year. United Merchants & Manufac- 
turers v. South Carolina Elec, etc., Co., 
113 F. Supp. 257 (1953). 

But contract must show on its face that 
it is incapable of performance within year. 
— Unless an alleged parol contract shows 



on its face that it is not capable of being 
performed within one year, it does not 
contravene the statute of frauds. There 
must be a negation of the right to perform 
the contract within a year. Elkins v. PIv- 
woods-Plastics Corps., 219 S. C. 296, 65 S. 

E. 2d 243 (1951). 

This statute does not apply, etc. 

In accord with paragraph under this 
catchline in Code. See Joseph v. Sears 
Roebuck & Co., 224 S. C. 105, 77 S. E. 2d 
58;. (1953). 

And is not applicable where contingency 
may occur, etc. 

In accord with 1st paragraph under this 
catchline in Code. See Joseph v. Sears 
Roebuck & Co., 224 S. C. 105, 77 S. E. 2d 
583 (1953). 

Such as oral contract of insurance. 

In accord with 1st paragraph under this 
catchline in Code. See Joseph v. Sears 
Roebuck & Co., 224 S. C. 105, 77 S. E. 2d 
583 (1953). 

An oral warranty that a pressure cooker 
sold to plaintiff by defendant was not 
dangerous and would not explode was one 
subject to a contingency which might 
occur within one year after its making and 
therefore not within the statute. Joseph 
v. Sears Roebuck & Co., 224 S. C. 105, 77 
S. E. 2d 583 (1953). 

Order submitting question of intention 
of parties to jury held proper. Elkins v. 
PIvwoods-PLastics Corp., 219 S. C. 296, 65 
S. E. 2d 243 (1951). 

VI. SUFFICIENCY OF 
MEMORANDUM. 

Memorandum insufficient. — Where, upon 
termination of contract between insurance 
company and agents, latter were entitled 
to receive one-half of renewal commissions 
for five years adjustable on claim loss ex- 
perience, and oral agreement allegedly en- 
tered into between parties eliminating ad- 
justable feature, agreement came within 
statute as being one not to be performed 
within one year, and company's monthly 
checks and supporting unsigned statements 
of account insufficient to constitute requisite 
memorandum to take the agreement out 
of statute. Southern States Life Insurance 
Co. v. Foster, 229 F. 2d 77 (1956). 
VII. PART PERFORMANCE. 

Sufficient part performance will take oral 
contract out of statute. — Sufficient part per- 
formance of parol contract for conveyance 
of real estate will, in equity, remove con- 
tract from operation of this section. Scurry 
v. Edwards, 232 S. C. 53, 100 S. E. 2d 812 
(1957). 

For part performance to put agreement 
beyond pale of statute, claimant must, save 
under exceptional circumstances, i. e. 
estoppel or resultant fraud, first acquit him- 
self of his burdens in full, leaving only 
other party in non-compliance. Southern 
States Life Insurance Co. v. Foster, 229 

F. 2d 77 (1956). 



246 



§ 11-101 



1960 Cumulative Supplement 



§ 11-101 



Specific performance allowable only to 
prevent fraud. — Nothing can be regarded 
as part performance to take contract out 
of operation of statute whicli does not place 
the party in a situation which is a fraud 
upon him unless contract is enforced. Aust 
v. Beard, 230 S. C. 515, 96 S. E. 2d 558 
(1957). 

Specific performance of oral contract for 
conveyance of land will be required if there 
is sufficient part performance. — Courts will 
require specific performance of oral contract 
for conveyance of land where terms of 
contract clear, definite and certain and are 
established by competent and satisfactory 
proof, and where party seeking to rescue it 
from this section shows such acts of per- 
formance or part performance on his part, 
clearly and unequivocally referable to such 
agreement, as would render application of 
this section unconscionable. Scurry v. Ed- 
wards, 232 S. C. 53, 100 S. E. 2d 812 
(1957). 

Acts of performance must relate ex- 
clusively to agreement. — Where party 
seeks to rescue parol agreement from stat- 
ute of frauds by showing possession and 
improvements put upon land, he must show 
acts of performance or part performance 
by him which relate clearly and unequi- 
vocally to such agreement exclusive of any 
other relation between parties touching the 
premises. Aust v. Beard, 230 S. C. 515, 
96 S. E. 2d 558 (1957). 

Complete performance may take oral 
agreement out of statute. — Complete per- 
formance of his obligations by one party to 
oral agreement otherwise within this sec- 
tion, with acceptance of performance by 
other party, will both in law and in equity 
at times exclude or withdraw the agree- 
ment from the statute. Southern States Life 
Insurance Co. v. Foster, 229 F. 2d 77 
(1956). 

Non-action is not such part performance 
as exempts a contract from the statute. — 
Non-action is an adequate consideration 
but it does not constitute a part perform- 
ance to excuse or lift agreement from ex- 
actions of frauds statute. Southern States 
Life Insurance Co. v. Foster, 229 F. 2d 77 
(1956). 

Part performance may take oral contract 
to make will out of statute. 

A parol contract to devise real estate in 
exchange for services, when it is fully 
established by clear and convincing proof 
and has been performed by the party ask- 
ing relief, will be enforced by a court of 
equitv. McLauchlin v. Gressette, 224 S. C. 
296, 79 S. E. 2d 149 (1953). 

Evidence held sufficient to establish an 
oral contract to make a will and perform- 
ance sufficient to take the case out of the 
statute of frauds. Kirkpatrick v. Kirkpat- 
rick. 223 S. C. 357. 75 S. E. 2d 876 (1953). 

Evaluation of acts of ownership to show 
part performance. — Acts of ownership by 



purchaser of real estate should be evaluated 
in light of purpose for which acquired. 
Scurry v. Edwards, 232 S. C. 53, 100 S. E. 
2d 812 (1957). 

A donee may have a decree for specific 
performance of a parol gift of land, pro- 
vided there is sufficient partial performance 
to take the case out of the statute of frauds, 
such as full possession thereunder and the 
making of permanent and valuable im- 
provements to the property. Brevard v. 
Fortune, 221 S. C. 117, 69 S. E. 2d 355 
(1952). 

Improvements not conclusive of suffi- 
cient part performance. — Fact that improve- 
ments have been made on property after 
possession, while strong evidence of part 
performance, is neither conclusive of that 
issue nor indispensable proof of it. Scurry 
v. Edwards, 232 S. C. 53, 100 S. E. 2d 812 
(1957). 

Payment insufficient to constitute part 
performance. — Payment of purchase price 
in whole or part is not of itself such part 
performance as will take contract out of 
statute, and fact that no part of purchase 
price has been paid does not necessarily 
require application of statute. Scurry v. 
Edwards, 232 S. C. 53, 100 S. E. 2d 812 
(1957). 

Mere change of possession not neces- 
sarily sufficient to avoid consequences of 
statute, but is a fact to be considered in 
connection with other facts and circum- 
stances of transaction in determining if 
there has been such performance or part 
performance as warrants relief from statute. 
Scurry v. Edwards, 232 S. C. 53, 100 S. E. 
2d 812 (1957). 

Actual possession most satisfactory evi- 
dence of part performance of oral agree- 
ment for partition. Scurry v. Edwards, 232 
S. C. 53, 100 S. E. 2d 812 (1957). 

Part performance sufficient. — In action to 
quiet title to two lots orally agreed to be 
sold to purchaser, one for use as an en- 
trance to his home which was then under 
construction, and the other to afford pro- 
tection against possibility that objectionable 
business establishments might be erected 
directly in front of his new home, and pur- 
suant to the oral agreement purchaser went 
into actual and active possession of first 
lot, such possession constituted such part 
performance of oral contract as removed it 
from operation of this section. Scurry v. 
Edwards, 232 S. C. 53, 100 S. E. 2d 812 
(1957). 

Part performance insufficient. — In action 
for specific performance of alleged parol 
executory contract for sale and conveyance 
of land, plaintiff's removal of some heavy 
undergrowth, planting some grass and erec- 
tion of two large electric signs on the land 
was not sufficient part performance to take 
contract out of operation of this section, 
such improvements not being permanent, 



247 



§ 11-302 Code of Laws of South Carolina § 12-2.2 

did not enhance value of land, nor were only be made by an owner. Aust v. Beard, 
they clearly and unequivocally referable to 230 S. C. 515, 96 S. E. 2d 558 (1957). 
alleged parol contract or such as would 

CHAPTER 7. 

Agents Acting After Death of Principal. 

Sec. 

11-302. Notes made before death and nego- 
tiated or transferred by agent 
afterwards. 

§ 11-302. Notes made before death and negotiated or transferred by agent 
afterwards. 

If any note or bill, whether filled up before or after having been signed or en- 
dorsed, shall he negotiated or transferred after the death of such drawer or endorser 
by an agent duly constituted in the lifetime of such drawer or endorser, such note 
or bill shall be valid and binding on the estate, in like manner as though he had 
not died before such negotiation or transfer, if the receiver of such note or bill 
received the same bona fide, without a knowledge of such death, and if the act 
of the agent would have been binding on the principal if it had been done before 
such death. The act to be done, either under the power of attorney or authority 
or in relation to the bill or note, must be done within nine months after the death 
of the principal or of the drawer or endorser of such note or bill. 

1942 Code § 7019; 1932 Code § 7019; Civ. C. '22 § 3849; Civ. C '12 § 2537; Civ. C. 
'02 § 1679; G. S. 1291; R. S. 1406; 1828 (6) 359; 1960 (51) 1735. 

Effect of amendment. — The 1960 amend- ferred" for "passed away" as to notes or 
ment substituted "negotiated or trans- bills. 



Title 12. 
Corporations. * 

Chap. 1. General Provisions, §§ 12-1 to 12-17. 

2. Creation and Organization of Corporations Generally, §§ 12-52 to 12-75. 
4. Capital Stock and Stockholders; Bonds, §§ 12-203 to 12-287. 
8. Merger and Consolidation in General, §§ 12-456.1 to 12-456.8. 

10. Dissolution and Transfer of All Assets, § 12-642. 

11. Foreign Corporations, §§ 12-708 to 12-732.1. 

11.1 Nonprofit Corporations Generally, §§ 12-745 to 12-745.6. 

16. State Business Development Corporations, §§ 12-1101 to 12-1163. 

17. County Business Development Corporations, §§ 12-1201 to 12-1263. 

CHAPTER 1. 
General Provisions. 

Sec 

12-1 to 12-2.2. fRepealed.] 

12-17. Shares of capital stock personalty. 

§§ 12-1 to 12-2.2. Annual reports of domestic corporations; verification 
thereof; penalties; etc. 

Repealed by A. & J. R. 1953 (48) 301. 
Cross reference. — See now §§ 65-621 to 
65-640. 



* As to incorporation of cooperative credit unions, see § 8-702. 
As to corporation convicted of barratry being barred from doing business in this 
State, see § 56-147.2. 

248 



§ 12-17 1960 Cumulative Supplement § 12-60 

§ 12-17. Shares of capital stock personalty. 

The shares of the capital stock of such corporations shall be deemed personal 
property or estate. 

1960 (51) 1743. 

CHAPTER 2. 

Creation and Organization of Corporations Generally. 

Article 1. Sec. 

Creation and Organization. 12-60. Recordation; copies as evidence of 
Sec. organization, etc. 

12-52. Initial meeting of subscribers; elec- 12-63. Charters perpetual; liquidation. 

tion of board. Article 2. 

12-58.2. Grand lodge to approve charter for Provisions Incorporated in Charters. 

subordinate lodge. 12-75. [Repealed.] 
12-58.3. Use of "Mason" and "Masonic" in 
charter of subordinate lodge. 

Article 1. 
Creation and Organisation. 
§ 12-52. Initial meeting of subscribers; election of board. 

Two or more persons desiring to form a corporation for any purpose whatso- 
ever or two or more combined (except for municipal purposes and except also 
for a railroad, railway, turnpike, canal or steamboat corporation) shall when not 
less than fifty per cent of the proposed capital stock shall have been subscribed 
by bona fide subscribers call the subscribers together. At such meeting of the sub- 
scribers, a majority of them in value being present in person or by proxy, the sub- 
scribers shall proceed to the organization of the proposed corporation by the elec- 
tion from among themselves of a board of directors, trustees or managers of such 
number as they may deem proper, not to exceed seventeen in number. Such board 
shall manage the affairs of the proposed corporation until their successors shall 
have been elected and shall have qualified according to the constitution and bylaws 
of the proposed corporation. 

1942 Code §§ 7726, 7729; 1932 Code §§ 7726, 7729; Civ. C. '22 §§ 4301; 4304; Civ. C. '12 
§§ 2834, 2837; Civ. C. '02 §§ 1880, 1883; 1896 (22) 92, 94; 1897 (22) 522; 1900 (23) 386; 
1903 (24) 75; 1920 (31) 754; 1923 (33) 157; 1936 (39) 1337; 1952 (47) 2173. 

Effect of amendment. — The amendment 
increased the maximum number of direc- 
tors from fifteen to seventeen. 

§ 12-58.2. Grand lodge to approve charter for subordinate lodge. 

The Secretary of State shall not issue a charter to any subordinate lodge with- 
out prior approval of the grand lodge or parent organization under which the sub- 
ordinate lodge operates. Upon the request of the grand lodge or parent organiza- 
tion, the Secretary of State shall cancel any such charter after due notice to the 
subordinate lodge. 

1958 (50) 1591. 

§ 12-58.3. Use of "Mason" and "Masonic" in charter of subordinate lodge. 

The words "Mason" and "Masonic" shall not be used in the charter of any sub- 
ordinate lodge without the written approval of the grand lodge or parent organi- 
zation. 

1958 (50) 1591. 

§ 12-60. Recordation; copies as evidence of organization, etc. 

A copy of such charter shall be recorded in the office of the register of mesne 
conveyances or clerk of court of each county in which such corporation shall have 
an office or place of business. Such copy shall be recorded thirty days after date 

249 



§ 12-63 Code of Laws of South Carolina § 12-102 

of issuance of the same. A copy of the certificate issued by the Secretary of State 
to the board of incorporators and known as the charter, when attested and certified 
by the Secretary of State or the register of mesne convyances or the clerk of the 
court of any county in which such certificate is recorded, shall in all courts and 
places be evidence of the due organization and existence of the corporation and of 
the matters specified in such certificate of incorporation. 

1942 Code § 7730; 1932 Code § 7730; Civ. C. '22 § 4305; Civ. C. '12 § 2838; Civ. C. 
'02 § 1884; 1896 (22) 94; 1920 (31) 754; 1936 (39) 1320; 1960 (51) 1927. 

Effect of amendment. — The 1960 amend- Secretary of State, register of mesne con- 
ment eliminated the receiving of attested veyances, or clerk of court in evidence for 
and certified copy of charter by deputy certain purposes. 

§ 12-63. Charters perpetual; liquidation. 

All charters granted under the provisions of this chapter shall continue of force 
perpetually unless limited by the terms of the petition ; provided, that all corpora- 
tions shall always have the right to go into liquidation and to wind up their affairs 
upon a stockholders' vote representing a majority of capital stock had after such 
notice as is provided in § 12-642. 

1942 Code § 7743; 1932 Code § 7743; Civ. C. '22 § 4317; Civ. C. '12 § 2848; Civ. C. 
02 § 1891; 1896 (22) 97; 1897 (22) 524; 1898 (22) 771; 1953 (48) 245. 

Effect of amendment. — The amendment same type of notice no change of sub- 
changed the reference from § 12-403 to § stance was effected. 
12-642 but as each section provides for the 

Article 2. 
Provisions Incorporated in Charters. 
§ 12-75. Shares deemed personalty except of manufacturing corporations. 
Repealed by A. & J. R. 1960 (51) 1743. 
Cross reference. — See now § 12-17. 

Article 3. 

Fees and Expenses. 

§12-81. Charter fees; filing fees. 

Cross reference. — As to fee tor filing 
certificate of dissolution, etc., see § 65-638. 

CHAPTER 3. 

Powers of Corporations Generally. 
§ 12-101. Powers of all private corporations. 

Rural electric cooperative, organized un- Cited in Bush v. Aiken Electric Co- 

der §§ 12-1001 et seq., is not subject to operative, 226 S. C. 442, 85 S. E. 2d 716 
suit in tort. Byrd v. Blue Ridge Rural (1955). 
Electrical Cooperative, 118 F. Supp. 86? 
(1954). 

§ 12-102. Powers of corporations organized under chapter two. 

Corporation may purchase its own stock to pay for purchase of its own stock, Oxner, 

if it acts in good faith and there is no J. stated in his dissent that great weight of 

charter or statutory restriction and corpora- authority was that although agreement by 

tion is neither insolvent nor in process of corporation to buy its stock was made in 

dissolution, and such purchase is not preju- good faith while solvent, if it became in- 

dicial to rights of creditors at time of pur- solvent before purchase price was paid, 

chase. Shayne of Miami v. Greybow, Inc., an obligation given by corporation for the 

232 S. C. 161, 101 S. E. 2d 486 (1957). (Edi- stock could not be enforced as against 

tor's note. — On question of effect of subse- rights of creditors then existing.) 
quent insolvency on corporation's obligation 

250 



1960 Cumulative Supplement § 12-247 

CHAPTER 4. 

Capital Stock and Stockholders; Bonds. 

Article 1. Sec. 

General Provisions. 12-247. Issuance of duplicate account books 
Sec. by building and loan associa- 

12-203. [Repealed.] , tions. 

Article 4. Article 7. 

Certificates of Stock. Increase and Decrease of Capital Stock. 

12-241. Requisites of certificate. 12-287. Automatic increase or decrease for 

building and loan associations. 

Article 1. 
General Provisions. 
§ 12-201. Dividends to be paid only out of earnings or earned surplus. 

Stated in Industrial Equipment Co. v. 
Montague, 224 S. C. 510, 80 S. E. 2d 114 
(1954). 

§ 12-203. Stock in manufacturing company realty; transfer, dower, execu- 
tion, distribution and taxation. 
Repealed by A. & J. R. 1960 (51 ) 1743. 
Cross reference. — See now § 12-17. 

Article 2. 

Preferred, No Par Value and Other Classes of Stock. 

§ 12-211. Several classes of stock, with or without par value, may be issued. 

It is common knowledge that preferred Tax Commission, 231 S. C. 587, 99 S. E. 2d 
stock has different characteristics from 377 (1957). 
common stock. Roper v. South Carolina 

Article 4. 
Certificates of Stock. 
§ 12-241. Requisites of certificate. 

The shares in every corporation organized under the laws of this State shall 
be numbered and shall be represented by certificates signed by the president or a 
vice-president and the secretary, an assistant secretary, the treasurer or an assistant 
treasurer and sealed with the seal of the corporation. Such seal may be facsimile, 
engraved or printed. When any such certificate is signed by a transfer agent, transfer 
clerk or by a registrar, the signature of any such officer upon such certificate may 
be facsimile, engraved or printed. In case any such officer, who has signed, or 
whose facsimile signature has been placed upon such certificate, shall have ceased 
to be such officer before such certificate is issued, such certificate may, nevertheless, 
be issued by the corporation with the same effect as if such officer had not ceased 
to be such officer on the date of its issue. 

1942 Code § 7681; 1932 Code § 7681; Civ. C. '22 § 4255; Civ. C. '12 § 2788; Civ. C. '02 
§ 1847; R. S. 1503; 1905 (24) 872; 1929 (36) 144; 1957 (50) 61. 

Effect of amendment. — The 1957 amend- bylaws to do so and also added the last 
ment designated officials who could sign three sentences, 
the certificates rather than permitting the 

§ 12-247. Issuance of duplicate account books by building and loan associa- 
tions. 
Notwithstanding the provisions of §§ 12-242 and 12-243, upon the filing with a 
State chartered building and loan association by the holder of record as shown by 
the books of the association, or by his legal representative, of an affidavit to the 
effect that the certificate or account book evidencing his savings account with the 

251 Volume 1 



§ 12-272 Code ok Laws of South Carolina § 12-361 

association has been lost or destroyed and such certificate or account book has not 
been pledged or assigned in whole or in part, such State chartered association 
may issue a new certificate or account book evidencing such savings account in 
the name of the holder of record. The board of directors shall, whenever in its 
judgment it is necessary, require advertisement as provided in § 12-242 or the 
filing of a bond as provided in § 12-243, or both. 
1954 (48) 1701. 

Article 7. 

Increase and Decrease oj Capital Stock. 

§ 12-272. Actions required of corporation for increase. 

Increased stock does not have to be sub- of the proposed increased stock has been 

scribed or paid for. — Capital stock of cor- subscribed or that any amount has been de- 

poration created under general corporation posited on such stock. Atty. Gen. Op., No. 

law of this State may be increased without 528, dated Dec. 17, 1956. 
any declaration or proof that any portion 

§ 12-287. Automatic increase or decrease for building and loan associations. 

Notwithstanding the provisions of §§ 12-271 to 12-286, the capital stock of any 
building and loan association chartered by this State shall not be limited to the 
amount stated in its original charter or by any amendment thereto but such capita] 
stock shall be increased or decreased automatically so as to equal at all times the 
aggregate of payments on shares of stock, either fully paid or installment accounts, 
plus dividends credited to such accounts, less redemptions and withdrawals. 

1954 (48) 1723. 

CHAPTER 5. 

Uniform Stock Transfer Act. 

§ 12-307. Powers of persons lacking legal capacity and fiduciaries. 

Cross reference. — As to gifts of securi- Uniform Act for Simplification of Fidu- 

ties to minors and sale, exchange, etc., ciary Security Transfers, see §§ 62-701 to 
thereof by custodian, see §§ 62-501 et seq. 62-712. 

CHAPTER 6. 
Officers and Directors. 

Article 1. 
General Provisions. 
§ 12-353. Failure to elect directors, trustees or managers. 

Delayed stockholders' meeting properly quired to be held by by-laws. Freeman v. 

called. — Stockholders' meeting called sub- King Pontiac Company, 236 S. C. 335, IN 

sequent to time fixed in by-laws by presi- S. E. 2d 478 (1960). 

dent who owned or controlled practically Less formality required in holding meet- 
all of the stock in corporation, was properly ings in closely held corporation. Freeman 
called under this section and when held v. King Pontiac Company, 236 S. C. 335, 
became annual meeting of stockholders re- 114 S. E. 2d 478 (1960). 

Article 2. 

Nonresident Directors. 

§ 12-361. Secretary of State attorney for service of process on nonresident 
directors. 

Constitutionality. — Where a state has an nonresident corporate director and this 

interest in regulating operations and trans- section, being neither an arbitrary nor un- 

actions by nonresidents, it has power to reasonable attempt to exercise the authority 

enact appropriate legislation for the bring- vested in it in the public interest, are not 

ing of a nonresident into its forum in ac- constitutionally objectionable as denying 

tions affecting his transactions in that state, due process. Wagenberg v. Charleston 

and § 10-432.1 providing for service upon Wood Products, 122 F. Supp. 745 (1954). 

252 



§ 12-363 1960 Cumulative Supplement § 12-456.1 

§ 12-363. Secretary of corporation to report nonresident directors to Sec- 
retary of State. 

Stated in Wagenberg v. Charleston 
Wood Products, 122 F. Supp. 745 (1954). 

CHAPTER 7. 
Amendment and Renewal of Charters. 

Article 1. 
Amendment or Repeal. 
§ 12-422. Petition for renewal. 

Enactment of chapter 4, of Title 37, did surer should petition for renewal of charter 

not affect perpetual charter previously in accordance with this section. Atty. Gen. 

granted to domestic mutual insurer, but to Op. Nov. 2, 1955. 
lemove any possible question, such in- 

CHAPTER 8. 
Merger and Consolidation in General. 

Sec. Sec. 

12-456.1. Domestic and foreign corpora- 12-456.6. Same; charter fee; filing fee. 

tions may consolidate into new 12-456.7. Same; requirements to do business 

corporation or merge into single in this State by resulting or sur- 

corporation. viving corporation governed by 

12-456.2. Same; agreement for such con- laws of another state. 

solidation or merger. 12-456.8. Same; Secretary of State agent 

12-456.3. Same; constituent corporation to for service of process on result- 
approve such agreement. ing or surviving corporation gov- 

12-456.4. Same; filing and recordation of erned by laws of another state 

such agreement. for enforcement of obligations 

12-456.5. Same; charter when resulting or of domestic constituent corpo- 

surviving corporation to be State rations, 
corporation; limitation on 
powers. 

§ 12-451. Domestic corporations may consolidate or merge. 

Creation of second corporation as part Beard v. South Carolina Tax Commission, 

of reorganization not prohibited.— This sec- 230 S. C. 357, 95 S. E. 2d 628 (1956). 

tion does not prohibit creation, simultan- Applied in Johnson v. Baldwin, 221 S. C. 

eously with and as integral part of reor- 141, 69 S. E. 2d 585 (1952). 

ganization, of second corporation to which Cited in Johnson v. Abney Mills, 219 

in course of the reorganization some of S. C. 231, 64 S. E. 2d 641 (1951). 
assets of merging corporations will pass. 

§ 12-456.1. Domestic and foreign corporations may consolidate into new cor- 
poration or merge into single corporation. 

Any one or more corporations existing under the laws of this State, except rail- 
roads and other transportation companies and telegraph and other transmitting 
corporations owning or controlling parallel or competing lines, may consolidate or 
merge with one or more other corporations, organized under the laws of any other 
state or states of the United States of America, if the laws under which such cor- 
porations are formed shall permit such consolidation or merger. The constituent 
corporations may merge into a single corporation, which may be any one of the 
constituent corporations, or they may consolidate to form a new corporation, which 
may be a corporation of the state of incorporation of any one of the constituent cor- 
porations as shall be specified in the agreement hereinafter required. 

1957 (50) 170. 

Editor's note. — For remainder of provi- 
sions added to be § 12-456.1, see §§ 10-424.3 
and 12-456.2 et seq. 

253 



§ 12-456.2 Code ok Laws oi- South Carolina § 12-456.6 

§ 12-456.2. Same; agreement for such consolidation or merger. 

All the constituent corporations shall enter into an agreement in writing which 
shall prescribe the terms and conditions of the consolidation or merger, the mode of 
carrying the same into effect, the manner of converting the shares of each of the con- 
stituent corporations into shares, other securities or obligations of the corporation 
resulting from or surviving such consolidation or merger and such other details 
and provisions as shall be deemed necessary or desirable. There shall also be set 
forth in the agreement such other facts as shall then be required to be set forth 
in a declaration for charter, or other similar document, by the laws of the state 
under which the resulting corporation is to be formed or the surviving corporation 
is to continue to exist, as provided by such agreement, stated in such form as may 
be required or permitted by the laws of such state. 

1957 (50) 170. 

§ 12-456.3. Same; constituent corporations to approve such agreement. 

The agreement shall be authorized, adopted, approved, signed and acknowledged 
by each of the constituent corporations in accordance with the laws of the state 
under which it was formed and, in the case of a South Carolina corporation, in 
the manner provided in § 12-453. 

1957 (50) 170. 

§ 12-456.4. Same; filing and recordation of such agreement. 

The agreement so authorized, adopted, approved, signed and acknowledged shall 
be filed in the office of the Secretary of State and the agreement shall thenceforth be 
taken and deemed to be the agreement and act of consolidation or merger of the 
constituent corporations for all purposes of the laws of this State. A copy of the 
agreement, duly certified by the Secretary of State under the seal of his office, shall 
also be recorded as provided in § 12-454 with respect to the consolidation or merger 
of corporations of this State. 

1957 (50) 170. 

§ 12-456.5. Same; charter when resulting or surviving corporation to be 
State corporation ; limitation on powers. 

If under the terms of the agreement there is a surviving corporation and such 
surviving corporation be a corporation of this State, the charter of the surviving 
corporation shall be deemed to be amended to the extent, if any, that changes in its 
charter are stated or reflected in the agreement ; and if the single corporation re- 
sulting from the consolidation be a new corporation and such new corporation be 
designated in the agreement as a corporation of this State, a certified copy of the 
agreement issued by the Secretary of State, as provided for in § 12-454, shall be the 
charter of the new corporation ; but such surviving or resulting corporation, if it be 
a corporation of this State, shall not, by reason of any merger or consolidation with 
any corporation formed under the laws of any other state, acquire authority to 
engage in any business or exercise any right or privilege which may not be engaged 
in or exercised by a corporation organized under the laws of this State. 

1957 (50) 170 

§ 12-456.6. Same; charter fee; filing fee. 

If the corporation resulting or surviving such consolidation or merger is to be a 
corporation of this State, the charter fee required by § 12-455 shall be paid the 
Secretary of State at the time the agreement is filed in his office ; however if it is to 
be governed by the laws of any state other than the laws of this State, the said 
charter fee shall not be collected but the Secretary of State shall collect a filing fee 
of five dollars at the time the agreement is filed in his office. 

1957 (50) 170. 

254 



§ 12-456.7 1960 Cumulative Supplement § 12-461 

§ 12-456.7. Same; requirements to do business in this State by resulting or 
surviving corporation governed by laws of another state. 

If the corporation resulting or surviving such consolidation or merger is to be 
governed by the laws of any state other than this State, it may qualify to do business 
in this State by filing with the Secretary of State the written stipulation or declara- 
tion required by § 12-721 and a copy of its bylaws within sixty days after the filing 
in his office of the written agreement of merger or consolidation and by the payment 
of the same fee as required of any foreign corporation domesticating in this State. 

1957 (50) 170. 

§ 12-456.8. Same; Secretary of State agent for service of process on result- 
ing or surviving corporation governed by laws of another state 
for enforcement of obligations of domestic constituent cor- 
porations. 

If the corporation resulting or surviving such consolidation or merger is to be 
governed by the laws of any state other than the laws of this State, it, on a form 
to be furnished by the Secretary of State, shall agree that it may be served with 
process or notice in this State in any proceeding for enforcement of any obligation 
of any constituent corporation of this State, including any amount to be paid dis- 
satisfied stockholders of any corporation of this State as such amount may be 
determined pursuant to the provisions of §§ 12-459 to 12-462, and shall irrevocably 
appoint the Secretary of State as its agent to accept service of process or notice in 
an action or proceeding for the enforcement of payment of any such obligation or 
any amount to be paid such dissatisfied stockholders and shall specify the address to 
which a copy of such process or notice shall be mailed by the Secretary of State. 

1957 (50) 170. 

§ 12-457. Effect of consolidation. 

Applied in Johnson v. Baldwin, 221 S. 
C. 141, 69 S. E. 2d 585 (1952). 

§ 12-459. Dissenting stockholders to be paid value of stock. 

Purpose of §§ 12-459 to 12-462. — The son v. Baldwin, 221 S. C. 141, 69 S. E. 

remedy of appraisal and payment pro- 2d 585 (1952). 

vided in §§ 12-459 to 12-462 was intended And dissenting shareholder is put to an 

to afford fair and just compensation to election. — A dissenting stockholder is put 

the dissenters and at the same time pro- to an election bv a statute of this kind, 

vide a method by which their objections Of course there may be circumstances un- 

could be fairly composed so as to enable der which the duty to make an election 

the consolidation to proceed. Johnson v. does not arise. For instance, if the merger 

Baldwin, 221 S. C. 141, 69 S. E. 2d 585 is not authorized by law or if brought 

(1952). about through fraudulent conduct, the dis- 

There is no underlying "natural right" senting stockholder has the right to go in 

of a shareholder to follow his investment a court of equity and seek an injunction 

into a consolidated corporation. Johnson against consummation of the merger, 

v. Baldwin, 221 S. C. 141, 69 S. E. 2d 585 Johnson v. Baldwin, 221 S. C. 141, 69 S. 

(1952). E. 2d 585 (1952). 

Sections 12-459 to 12-462 enter into and Applied in Johnson v. Abney Mills, 219 

form a part of the contract between the S. C. 231, 64 S. E. 2d 641 (1951). 
corporation and the stockholders. John- 

§ 12-461. Dissenting stockholder ceases to be stockholder; rights thereof. 

A dissenting stockholder ceases to be a manded payment for her stock and peti- 

stockholder in the constituent corporation tioned the court for the appointment of 

upon making demand for the payment of appraisers, and there was no showing that 

his stock. Johnson v. Baldwin, 221 S. C. she was induced to make this demand 

141. 69 S. E. 2d 585 (1952). through fraudulent concealment or false 

And may not thereafter withdraw his representations as to the facts, or through 

demand and resume his status as a stock- mistake, she was bound by her election 

holder. — -Where a dissenting stockholder, and could not thereafter withdraw her 

within the time required by statute, de- demand and restore her status as a stock- 

255 



§ 12-463 Code ok Laws of South Carolina § 12-642 

holder. Johnson v. Baldwin, 221 S. C. 141, He has no standing to maintain a deri- 

69 S. E. 2d 585 (1952). vative action against the directors. — A dis- 

Although he remains nominally a stock- senting stockholder who has made demand 

holder for a transitory period. — After a for the payment of his stock, having ceased 

dissenting stockholder has made demand to be a stockholder, has no standing to 

for the payment of his stock, there is a continue a stockholder's derivative action 

transitory period when he is such in name against the directors of the constituent 

only with none of the ordinary incidents corporation for mismanagement and waste, 

or rights of a stockholder. Johnson v. Johnson v. Baldwin, 221 S. C. 141, 69 S. 

Baldwin, 221 S. C. 141, 69 S. E. 2d 585 E. 2d 585 (1952). 
(1952). 

§ 12-463. Effect of consolidation on actions pending. 

Quoted in Johnson v. Baldwin, 221 S. 
C. 141, 69 S. E. 2d 585 (1952). 

§ 12-464. Certain liabilities and rights not affected. 

Right of stockholder to bring deriva- creditor of a corporation whose rights are 

tive action against directors not preserved. preserved under this section. Johnson v. 

—The derivative right of a stockholder to Baldwin, 221 S. C. 141, 69 S. E. 2d 585 

bring action against the directors for mis- (1952). 
management and waste is not that of a 

CHAPTER 10. 
Dissolution and Transfer of All Assets. 

Article 4. 
Voluntary Dissolutions. 
Sec. 

12-642. Stockholders meeting and resolu- 
tion. 

Article 1. 
General Provisions. 

§ 12-601. Continuance for closing affairs after expiration, dissolution, etc 

Quoted in dissenting opinion Stukes, 
A. J., in Foster v. Morrison, 226 S. C. 149, 
84 S. E. 2d 344 (1954). 

§ 12-608. Recording cancellation or surrender of charters. 

Cited in dissenting opinion Stukes, A. J., 
in Foster v. Morrison, 226 S. C. 149, 84 
S. E. 2d 344 (1954). 

AsticlE 3. 
Sale oj Major Assets. 

§ 12-635. Effect of payment. 

When interest of dissenting stockholder or provision made for payment. Johnson 

ceases. — Under this section the interest of v. Baldwin, 221 S. C. 141, 69 S. E. 2d 585 

the dissenting stockholder in his stock does (1952). 
not cease until he has been paid its value 

Article 4. 

Voluntary Dissolutions. 

§ 12-642. Stockholders meeting and resolution. 

In order for any corporation to go into liquidation and wind up its affairs and 
dissolve as hereinbefore authorized, the board of directors, trustees or managers 
shall call a stockholders' meeting, giving at least thirty days' notice of the time, place 
and purpose of such meeting by the mailing of written notice to each stockholder 
and by publication in some newspaper having general circulation in the county in 
which the corporation has its principal place of business. Any such meeting may 

256 



§ 12-644 1960 Cumulative Supplement § 12-708 

also be called by the president of the corporation or by stockholders owning in the 
aggregate twenty per cent of the capital stock, in the manner above provided. If 
a majority of the stock of the corporation be present at such meeing in person or 
by proxy and a resolution that such corporation shall go into liquidation and wind 
up its affairs and dissolve be adopted by a majority vote of all the shares of capital 
stock the corporation may thereupon go into liquidation and proceed to wind up its 
affairs and dissolve. 

1942 Code § 7708; 1932 Code § 7708; Civ. C. '22 § 4280; Civ. C. '12 § 2813; 1902 (23) 
1036; 1960 (51) 1752. 

Effect of amendment. — The 1960 amend- have general circulation in the county and 
ment as to publication of notice eliminated also eliminated posting of notice upon 
requirement that newspaper be published courthouse door when no newspaper pub- 
in the county and provided for same to lished in the county. 

§ 12-644. Dissolution not to bar action. 

Quoted in dissenting opinion Stukes, 
A. J., in Foster v. Morrison, 226 S. C. 149, 
84 S. E. 2d 344 (1954). 

CHAPTER 11. 

Foreign Corporations. 

Article 1. Article 3. 

General Provisions. Fees and Annual Reports. 

Sec. Sec. 

12-708. Copies of papers to be furnished 12-732. 12-732.1. [Repealed.] 
and received in evidence. 

Article 1. 
General Provisions. 

§ 12-701. Permission to qualify granted to foreign corporations. 

This chapter does not govern admission This chapter covers every type of foreign 
of foreign insurance companies. — The pro- corporation doing business within the 
visions of this chapter do not govern ad- State, except those engaged solely in inter- 
mission of foreign insurance companies to state business, and all foreign corporations 
do business in this state. State v. National doing intrastate business are required to 
Postal Transport Association, 234 S. C. 260, domesticate hereunder. Atty. Gen. Op. Oct. 
107 S. E 2d 763 (1959). 18, 1955. 

§ 12-703. Contracts with citizens deemed made in State. 

Applied in Meinhard, Greeff & Co. v. Maryland Casualty Company, 123 F. Supp. 
Edens. 189 F. 2d 792 (1951); Schafer v. 873 (1954). 

§ 12-705. Foreign corporations subject to laws of State. 

Stated in dissenting opinion Stukes, Cited in dissenting opinion Stukes, A. J.. 

A. J., in Foster v. Morrison, 226 S. C. 149, in Foster v. Morrison, 226 S. C. 149, 84 
84 S. E. 2d 344 (1954). S. E. 2d 344 (1954). 

§ 12-708. Copies of papers to be furnished and received in evidence. 

Any person applying therefor shall be entitled to copies, duly certified, of all 
papers required to be filed under the provisions of this chapter upon payment of 
the required fees. Certified copies of such papers shall be admitted in the courts 
as competent evidence of all matters appearing thereon. 

1942 Code § 7772; 1932 Code § 7772; Civ. C. '22 § 4031; Civ. C. "12 § 2667; Civ. C. 
'02 § 1782; R. S. 1468; 1953 (48) 190. 

Effect of amendment. — The amendment the section was added. The omission of 

act recites that a portion of § 7772 of the the second sentence in the 1952 Code was, 

Code of 1942 was omitted when that sec- however, deliberate as its substance was 

tion was recodified as § 12-708 of the Code covered by § 26-101 and its re-enactment 

of 1952 and hence the second sentence of is therefore surplusage. 

257 



§ 12-721 



Code of Laws of South Carolina 



§ 12-725 



Article 2. 

Qualification and Withdrawal. 

§ 12-721. Stipulation to be filed by foreign corporations. 

This section does not apply to foreign 
insurance companies. State v. National 
Postal Transport Association, 234 S. C. 260, 
107 S. E. 2d 763 (1959). 

This and §§ 12-722 and 10-424, which 
constituted a single section in 1942 Code 

§ 12-722. Effect of failure to file. 

This section does not require that de- 
fendant be doing business in this State at 
time of substituted service. Boney v. Trans- 
State Dredging Co., S. C. , 115 S. E. 
2d 508 (1960). 

No universal formula for determining 
what constitutes "doing business" by 
foreign corporation, and question must be 
resolved upon facts of particular case. 
Boney v. Trans-State Dredging Co.. 
S. C. , 115 S. E. 2d 508 (1960). 

Considerations for determination of what 
constitutes "doing business" by foreign 
corporation include duration of corporate 
activity in state of forum, character of acts 
giving rise to the suit, and circumstances of 
their commission, and balancing of incon- 
venience to parties, respectively, of a trial 
in that state on one hand and in state of cor- 
porate domicile on the other. Boney v. 
Trans-State Dredging Co., S. C. , 

115 S._ E. 2d 508 (1960). 

Resident of this State cannot obtain 
jurisdiction in this State of foreign cor- 
poration previously domesticated in this 
State, upon a cause of action arising in an- 
other state and not connected with any 
business activities in this State of the 
foreign corporation, by service of sum- 
mons and complaint upon Secretary of 
State of this State, after foreign corpora- 
tion had withdrawn from this State. Foster 
v. Morrison, 226 S. C. 149, 84 S. E. 2d 344 
(1954). 

Substituted service on foreign corpora- 



(§ 7765), must be construed together. 
Foster v. Morrison, 226 S. C. 149, 84 S. E. 
2d 344 (1954). 

Cited in dissenting opinion Stukes, A. J., 
in Foster v. Morrison, 226 S. C. 149, 84 
S. E. 2d 344 (1954). 



tion held proper. — Where Florida corpora- 
tion's dredging operations extended over a 
continuous period of more than ten months, 
although not continuously performed in this 
State, and over area of 142 miles of the 
Savannah River, the boundary between this 
State and Georgia, and were such as were 
normally incident to its business, being con- 
ducted sometimes in Georgia and sometimes 
in this State, dredging on both sides of 
boundary being required, and accident 
from which action resulted occurred in 
course of those operations when its dredge 
was moored to South Carolina bank by 
cable, sudden lifting of which overturned 
plaintiff's boat allegedly causing injury and 
damages, such operations constituted cor- 
porate activity within this State sufficient 
to subject it to jurisdiction of courts of this 
State, and substituted service under this 
section was proper. Boney v. Trans-State 
Dredging Co., S. C. ,115 S. E. 2d 

508 (1960). 

This and §§ 12-721 and 10-424, which 
constituted a single section in 1942 Code 
(§ 7765), must be construed together. 
Foster v. Morrison, 226 S. C. 149, 84 S. E. 
2d 344 (1954). 

Stated in State v. National Postal Trans- 
port Association, 234 S. C. 260, 107 S. E. 
2d 763 (1959). 

Cited in dissenting opinion Stukes, A. J., 
in Foster v. Morrison, 226 S. C. 149, 84 
S. E. 2d 344 (1954). 



§ 12-723. Resignation of agent appointed. 

Cited in dissenting opinion Stukes, A. J., 
in Foster v. Morrison, 226 S. C. 149, 84 
S. E. 2d 344 (1954). 

§ 12-724. Additional papers and statements to be filed on qualification. 

This section merely supplements § 12- This section does not apply to foreign in- 

721. State v. National Postal Transport As- surance companies. State v. National Postal 

sociation, 234 S. C. 260, 107 S. E. 2d 763 Transport Association, 234 S. C. 260, 107 

(1959). S. E. 2d 763 (1959). 

§ 12-725. Withdrawal of foreign corporations. 

Cited in dissenting opinion Stukes, A. J., 
in Foster v. Morrison, 226 S. C. 149, 84 
S. E. 2d 344 (1954). 



258 



§ 12-731 1960 Cumulative Supplement § 12-745 

Article 3. 
Fees and Annual Reports. 
§ 12-731. Annual report of Secretary of State. 

This section refers to foreign corpora- tional Postal Transport Association, 234 
tions that have domesticated under provi- S. C. 260, 107 S. E. 2d 763 (1959). 
sions of Chap. 11, Title 12. State v. Na- 

§§ 12-732, 12-732.1. Reports to Tax Commission; exceptions. 

Repealed by A. & J. R. 1953 (48) 301. 

Cross reference. — See now §§ 65-621 to port Association, 234 S. C. 260, 107 S. E. 2d 
65-640. 763 (1959). 

Stated in State v. National Postal Trans- 

§ 12-733. Fees of foreign corporations domesticating in State. 

Stated in State v. National Postal Trans- 
port Association, 234 S. C. 260, 107 S. E. 2d 
763 (1959). 

§ 12-734. Annual fee of foreign corporations domesticated. 

Stated in State v. National Postal Trans- 
port Association, 234 S. C. 260, 107 S. E. 2d 
763 (1959). 

§ 12-735. Fees of domesticated foreign corporations for filing certain papers. 

Stated in State v. National Postal Trans- 
port Association, 234 S. C. 260, 107 S. E. 2d 
763 (1959). 

§ 12-736. Corporations exempted. 

Stated in State v. National Postal Trans- 
port Association, 234 S. C. 260, 107 S. E. 2d 
763 (1959). 

§ 12-737. Penalties for failure to file statements or pay fees. 

This section is a penal one and must be S. C. 260, 107 S. E. 2d 763 (1959). 

strictly construed, and any reasonable This section does not apply to foreign 

doubt as to its applicability must be re- insurance companies. State v. National 

solved in corporation's favor. State v. Na- Postal Transport Association, 234 S. C. 

tional Postal Transport Association, 234 260, 107 S. E. 2d 763 (1959). 

CHAPTER 11.1. 
Nonprofit Corporations Generally. 

Article 1. Sec. 

Investigations. 12-745.3. Use of information acquired in 
Sec. examinations. 

12-745. Attorney General may investigate 12-745.4. Right to operate forfeited if ex- 
nonprofit corporations. animation refused. 

12-745.1. Written request required; consent 12-745.5. Article cumulative. 

to be immediate. 12-745.6. Invalidity. 
12-745.2. Permit examination of records. 

Article 1. 

Investigations. 

§ 12-745. Attorney General may investigate nonprofit corporations. 

The Attorney General, or any of his assistants or representatives when author- 
ized by the Attorney General, may make investigations into the organization, con- 

259 



§ 12-745.1 Code of Laws of South Carolina § 12-745.6 

duct and management of any nonprofit corporation, domestic or foreign, operating 
in this State. 

1958 (50) 1901. 

Editor's note. — The provisions of this 
article are cumulative, § 12-745.5. 

§ 12-745.1. Written request required ; consent to be immediate. 

A written request shall be made to the president or other officer of such cor- 
poration at the time the Attorney General or his assistants or representatives de- 
sire to examine its affairs and such officer or his agent shall immediately permit 
the Attorney General, or his authorized assistants or representatives, to inspect 
and examine any of its documents. 

1958 (50) 1901. 

§ 12-745.2. Permit examination of records. 

Every such corporation shall permit the Attorney General, or any of his au- 
thorized assistants or representatives, to examine and take copies of all its books, 
accounts, records, minutes, letters, memoranda, documents, checks, vouchers, tel- 
egrams, constitution, bylaws and other records as often as the Attorney General 
may deem necessary to show or tend to show that it has been, or is, engaged in acts 
or conduct in violation of its charter rights and privileges or of any law of this State. 

1958 (50) 1901. 

§ 12-745.3. Use of information acquired in examinations. 

The Attorney General, or his authorized assistants or representatives, shall not 
make public, or use any document, copy or other information derived in the course 
of any examination authorized by this article, except in a judicial proceeding to 
which the State is a party, or in a suit by the State to cancel the certificate of 
domestication or to cause the charter of such corporation to be forfeited, or to 
collect penalties for a violation of the laws of this State, or for the information of 
any officer of this State charged with the enforcement of its laws. 

1958 (50) 1901. 

§ 12-745.4. Right to operate forfeited if examination refused. 

Any foreign nonprofit corporation operating in this State under a certificate of 
domestication granted under the laws of this State, or any officer or agent thereof, 
or any domestic nonprofit corporation which shall fail or refuse to permit the At- 
torney General, or his authorized assistants or representatives, to examine or take 
copies of any of its documents as provided for in this article, whether they be 
situated within or without this State, shall thereby forfeit its right to operate in 
this State and its certificate of domesticaion or charter shall be cancelled or for- 
feited. 

1958 (50) 1901. 

§ 12-745.5. Article cumulative. 

The provisions of this article shall be cumulative of all other laws in force in 
this State on April 11 1958. 
1958 (50) 1901. 

§ 12-745.6. Invalidity. 

If any provision of this article or the application thereof to any person or cir- 
cumstance is held invalid, the remainder of the article and the application of such 
provision to other persons or circumstances shall not be affected thereby. 

1958 (50) 1901. 

260 



§ 12-751 



1960 Cumulative Supplement 



12-758 



CHAPTER 12. 
Charitable, Social and Religious Corporations. 



§ 12-751. Incorporation authorized. 

Meaning of eleemosynary. — In accord 
with paragraph under this catchline in 
Code. See Eiserhardt v. State Agricultural 
& Mech. Soc. of S. C, 235 S. C. 305, 111 
S. E. 2d 568 (1959). 

It is to corporations formed under this 
chapter that exemption from liability for 
tort has been extended by the Supreme 
Court of South Carolina. Byrd v. Blue 
Ridge Rural Electrical Cooperative, 215 
F. 2d 542 (1954), reversing 118 F. Supp. 
868. 

Claim by corporation of immunity from 
tort liability is an affirmative defense. 
Eiserhardt v. State Agricultural & Mech. 
Soc. of S. C, 235 S. C. 305, 111 S. E. 2d 
568 (1959). 

Defendant is an eleemosynary corpora- 
tion chartered under this chapter and as 
such is not liable for its torts. Bean v. 
Piedmont Interstate Fair Association, 124 
F. Supp. 385 (1955). (Reversed in Bean v. 
Piedmont Interstate Fair Association, 222 
F. 2d 227). 

In tort action true nature of charitable 
corporation may be shown. — Even if an 
institution be chartered as charitable or 
eleemosynary corporation, such fact not 
conclusive of its character, kind or purpose, 
and in tort action against such corporation 
its true nature may be shown from manner 
in which it conducts its business as well 
as from its articles of incorporation, and 
on trial any competent evidence may be 
offered with respect to actualities of its 
operations. Eiserhardt v. State Agricultural 
& Mech. Soc. of S. C, 235 S. C. 305, 111 
S. E. 2d 568 (1959). 

Charitable character of corporation de- 
pends upon facts and its charter not con- 

§ 12-752. What declaration to contain. 

Stated in Rean v. Piedmont Interstate 
Fair Association, 222 F. 2d 227 (1955). 



§ 12-757. Irregularities in incorporation. 

Stated in Bean v. Piedmont Interstate 
Fair Association, 222 F. 2d 227 (1955). 



elusive on question of its tort liability for 
injuries sustained by stepping into hole 
in parking lot controlled and operated by 
it. Eiserhardt v. State Agricultural & Mech. 
Soc. of S. C, 235 S. C. 305, 111 S. E. 
2d 568 (1959). 

Immunity from tort liability does not 
extend to commercial activities. — While 
charitable institutions enjoy full immunity 
from torts of their agents and servants, 
such immunity should not be extended to 
situation where activity out of which al- 
leged liability arose was primarily com- 
mercial in character and wholly uncon- 
nected with charitable purpose for which 
corporation was organized. Eiserhardt v. 
State Agricultural & Mech. Soc. of S. C, 
235 S. C. 305, 111 S. E. 2d 568 (1959). 

On question of tort liability immunity, 
what activity will or will not constitute 
necessary connection with or direct relation 
to charitable enterprise for which particular 
charity was organized and is operated will 
depend upon facts of each case. Eiserhardt 
v. State Agricultural & Mech. Soc. of S. C, 
235 S. C. 305, 111 S. E. 2d 568 (1959). 

On present record before court, appellee 
not an eleemosynary body immune from 
tort liability, even though incorporated un- 
der statutes relating to charitable corpora- 
tions. Bean v. Piedmont Interstate Fair 
Association, 222 F. 2d 227 (1955). (Revers- 
ing Bean v. Piedmont Interstate Fair As- 
sociation, 124 F. Supp. 385.) 

Stated in Bean v. Piedmont Interstate 
Fair Association, 222 F. 2d 227 (1955). 

Cited in Piedmont Interstate Fair Ass'n 
v. Bean. 209 F. 2d 942 (1954): Bush v. 
Aiken Electric Cooperative, 226 S. C. 442, 
85 S. E. 2d 716 (1955). 



§ 12-758. Powers of corporation. 

Applied in Frierson v. Porter Academy, 
217 S. C. 168, 60 S. E. 2d 82 (1952). 

Stated in Bean v. Piedmont Interstate 
Fair Association, 222 F. 2d 227 (1955). 



Cited in Byrd v. Blue Ridge Rural Elec- 
trical Cooperative, 215 F. 2d 542 (1954), 
reversing 118 F. Supp. 868. 



261 



§ 12-801 



Code oi" Laws of South Carolina 



§ 12-1005 



CHAPTER 13. 
Cooperative Associations Generally. 



§ 12-801. Definition. 

A cooperative organized under this chap- 
ter or the Rural Electric Cooperative Act, 
§§ 12-1001 et seq., is not a charitable cor- 
poration in the sense in which this term 

§ 12-815. Powers of association. 

Stated in Byrd v. Blue Ridge Rural 
Electrical Cooperative, 215 F. 2d 542 
(1954), reversing 118 F. Supp. 868. 



is used in the laws of South Carolina. 
Byrd v. Blue Ridge Rural Electrical Coop- 
erative, 215 F. 2d 542 (1954), reversing 
118 F. Supp. 868. 



CHAPTER 15. 
Rural Electric Cooperative Act. 

Article 1. 
General Provisions. 



§ 12-1001. Short title. 

This chapter is not unconstitutional as 
a special instead of a general law in vio- 
lation of S. C. Const., Art. 3, § 34. Book- 
hart v. Central Elec. Power Cooperative, 
219 S. C. 414, 65 S. E. 2d 781 (1951). 

A cooperative organized under chapter 
13, § 12-801 et seq. or under this chapter 
is not a charitable corporation in the sense 
in which this term is used in the laws of 
South Carolina. Byrd v. Blue Ridge Rural 
Electrical Cooperative, 215 F. 2d 542 (1954), 
reversing 118 F. Supp. 868 (1954). 

A cooperative organized under this chap- 
ter is not a charitable corporation, and fact 
that it is not operated for profit and has 
been given tax exemptions is not control- 
ling. Bush v. Aiken Electric Cooperative, 
226 S. C. 442, 85 S. E. 2d 716 (1955). 

Cooperative formed under this chapter 
not exempt from liability for torts. Bush 
v. Aiken Electric Cooperative, 226 S. C. 
442, 85 S. E. 2d 716 (1955). 

Rural electric cooperative not exempt 
from liability for tort either as a public 
body or as a charitable organization, which 
are the only corporations so exempt under 

§ 12-1002. Definitions. 

Quoted in Bookhart v. Central Elec. 
Power Cooperative, 222 S. C. 289, 72 S. 
E. 2d 576 (1952). 

§ 12-1005. Exemption from control of 

This chapter does not limit the author- 
ized activities of an electric cooperative to 
rural areas not having existing electric 
service; this section indicates a contrary 
intention. Bookhart v. Central Elec. Power 
Cooperative, 222 S. C. 289, 72 S. E. 2d 576 
(1952). 

But exemption from jurisdiction of the 
Public Service Commission does not free 
the cooperatives from rate and other regu- 
lations. Such regulation is a proper exer- 



the decisions of the Supreme Court of 
South Carolina. Byrd v. Blue Ridge Rural 
Electrical Cooperative, 215 F. 2d 542 
(1954), reversing 118 F. Supp. 868 (1954). 

This chapter contains no express grant 
of immunity from tort liability, and in ab- 
sence of such it may not be fairly assumed 
that legislature intended that these cor- 
porations, which are extensively engaged 
in selling and distributing highly dangerous 
commodity and which benefit primarily 
only their members, should be immune 
from liability for their negligence or reck- 
lessness. Bush v. Aiken Electric Coope- 
rative, 226 S. C. 442, 85 S. E. 2d 716 
(1955). 

Cited in Bookhart v. Central 
Power Cooperative, 222 S. C. 289, 
E. 2d 576 (1952); Byrd v. Blue 
Rural Electrical Cooperative, 118 F. 
868 (1954); 215 F. 2d 542 (1954), revers- 
ing 118 F. Supp. 868; Bush v. Aiken Elec- 
tric Cooperative, 226 S. C. 442, 85 S. E. 2d 
716 (1955); Blue Ridge Rural Electric Co- 
operative v. Bvrd, 238 F. 2d 346 (1956). 



Elec. 
72 S. 
Ridge 
Supp. 



Public Service Commission. 

cise of the police power, provided it does 
not violate constitutional limitations or 
restrictions. This power may be exercised 
directly by the Legislature, or indirectly 
through municipal corporations, boards, 
commissions, or other governmental bodies 
and agencies, to which the power has 
been lawfully delegated. Bookhart v. Cen- 
tral Elec. Power Cooperative, 219 S. C. 
414, 65 S. E. 2d 781 (1951). 



262 



1960 Cumulative Supplement 



§ 12-1025 



Cooperatives are not immune from the 
police power and may be subjected to 
regulatory legislation. Pee Dee Electric 
Cooperative v. Public Service Com'n, 229 
S. C. 155, 92 S. E. 2d 171 (1956). 



Stated in Byrd v. Blue Ridge Rural Elec- 
trical Cooperative, 118 F. Supp. 868 (1954), 
215 F. 2d 542 (1954), reversing 118 F. Supp. 
86S; Bush v. Aiken Electric Cooperative, 
226 S. C. 442, 85 S. E. 2d 716 (1955). 



§ 12-1006. Securities Act not applicable 

Securities and evidences of indebtedness 
issued by a rural electric cooperative are 
exempt from the provisions of the South 
Carolina Securities Act (Title 62). Byrd v. 
Blue Ridge Rural Electrical Cooperative, 
118 F. Supp. 868 (1954). 

§ 12-1013. Annual fees. 

Rural electric cooperative is exempt from 
all excise and income taxes except the fee 
required by this section. Byrd v. Blue 
Ridge Rural Electrical Cooperative, 118 F. 
Supp. 868 (1954). 

Rural electric cooperatives serve a bene- 
ficial public purpose and their exemption 
from taxation is accordingly justified on 
this ground. Byrd v. Blue Ridge Rural 
Electrical Cooperative, 215 F. 2d 542 



Stated in Byrd v. Blue Ridge Rural 
Electrical Cooperative, 215 F. 2d 542 
(1954), reversing 188 F. Supp. 868. 



(1954), reversing 118 F. Supp. 868. 

Stated in Byrd v. Blue Ridge Rural Elec- 
trical Cooperative, 215 F. 2d 542 (1954), 
reversing 118 F. Supp. 868; Bush v. Aiken 
Electric Cooperative, 226 S. C. 442, 85 S. E. 
2d 716 (1955). 

Cited in Bookhart v. Central Elec. 
Power Cooperative, 219 S. C. 414, 65 S. E. 
2d 781 (1951). 



Article 2. 

Incorporation; Bylaws and Powers. 

§ 12-1021. For what purpose organized. 

226 S. C. 442, 85 S. E. 2d 716 (1955). 



This chapter was designed to make elec- 
tric energy available in rural areas as 
cheaply as possible. Bush v. Aiken Electric 
Cooperative, 226 S. C. 442, 85 S. E. 2d 716 
(1955). 

Cooperatives organized under this chap- 
ter are public service corporations. Book- 
hart v. Central Elec. Power Cooperative, 
219 S. C. 414, 65 S. E. 2d 781 (1951). 

Although serving public purpose, co- 
operative organized under this chapter is 
voluntary association to provide its mem- 
bers electrical service at lowest possible 
cost. Bush v. Aiken Electric Cooperative, 

§ 12-1022. Organizers. 

Stated in Bush v. Aiken Electric Co- 
operative, 226 S. C. 442, 85 S. E. 2d 716 

(1955). 

§ 12-1025. Powers of cooperative. 

Cross references. — As to owner of prop- 
erty annexed to a municipality on consent 
of owner and municipality being able to 
continue to be served by an electric co- 
operative with electric energy in Horry 
County, see § 47-41. 

As to authority of rural electric cooper- 
atives to acquire property for rights of 
way, plants, substations, etc., see § 24-12. 

A rural electric cooperative's corporate 
purpose is a public one. Bookhart v. Cen- 
tral Elec. Power Cooperative, 222 S. C. 
289, 72 S. E. 2d 576 (1952). 

And its exercise of the power of eminent 
domain is constitutional. — Exercise by a 



And, as such, obliged to make member- 
ship available without arbitrary or unreas- 
onable limitations. Bush v. Aiken Electric 
Cooperative, 226 S. C. 442, 85 S. E. 2d 716 
(1955). 

Quoted in Bookhart v. Central Elec. 
Power Cooperative, 222 S. C. 289, 72 S. 
E. 2d 576 (1952); also Byrd v. Blue Ridge 
Rural Electrical Cooperative, 118 F. Supp. 
868 (1954). 

Stated in Blue Ridge Rural Electric Co- 
operative v. Byrd, 238 F. 2d 346 (1956). 



rural electric cooperative of the power of 
eminent domain is not in violation of the 
State and Federal constitutions on the 
ground that the use to which the property 
is proposed to be put is private rather than 
public, since such cooperatives are pub- 
lic corporations, and their use and function 
public, rather than private. Bookhart v. 
Central Elec. Power Cooperative, 219 S. 
C. 414, 65 S. E. 2d 781 (1951). 

It is under obligation to render nondis- 
criminatory service. — A cooperative or- 
ganized under this chapter is public in its 
nature and purpose, with the expressly 
delegated power of eminent domain, which 



263 



§ 12-1031 



Code of Laws of South Carolina 



§ 12-1062 



inevitably results in the obligation to rea- 
sonably render nondiscriminatory service. 
That affords protection to the public, in- 
cluding applicants for membership, from 
arbitrary action by way of exclusion from 
membership or otherwise. Bookhart v. 
Central Elec. Power Cooperative, 219 S. 
C. 414, 65 S. E. 2d 781 (1951). 

A rural electric power cooperative has 
been given authority by the General As- 
sembly to condemn rights of way. Book- 
hart v. Central Elec. Power Cooperative, 
222 S. C. 289, 12 S. E. 2d 576 (1952). 

Subsection (8) of this section gives a 
rural electric cooperative broad authoriza- 
tion to contract in reference to its trans- 
mission system, and the South Carolina 
Public Service Authority has the power 
to contract with the cooperative for use of 
such system to deliver the electric energy 
produced by it to its customers, license to 
do which it has in the act creating it. Book- 
hart v. Central Elec. Power Cooperative, 
222 S. C. 289, 72 S. E. 2d 576 (1952). 



Competition with private electric utilities 
not prohibited. — This section does not limit 
right of cooperative to serve customers 
where they are being served by private 
electric companies, and it must be assumed 
that legislature intended for cooperatives 
organized under this chapter to serve cus- 
tomers designated in this section in all 
rural areas regardless of whether or not 
such rural areas were then or hereafter 
being served by private electric utilities. 
Heath Springs Light & P. Co. v. Lynches 
River E. Coop., 231 S. C. 34, 97 S. E. 2d 
79 (1957). 

Rural electric cooperative is not subject 
to suit in tort. Byrd v. Blue Ridge Rural 
Electrical Cooperative, 118 F. Supp. 868 
(1954). 

Stated in Byrd v. Blue Ridge Rural Elec- 
trical Cooperative, 215 F. 2d 542 (1954), 
reversing 118 F. Supp. 868; Bush v. Aiken 
Electric Cooperative, 226 S. C. 442, 85 S. E. 
2d 716 (1955); Blue Ridge Rural Electric 
Cooperative v. Bvrd, 238 F. 2d 346 (1956). 



Article 3. 
Provisions Affecting Members. 
§ 12-1031. Membership. 

Cooperative must make membership ritories of their operation the "public" 

available to all coming within purview of which must be reasonably served, and to 

its purpose. — Implicit in the purpose for whom the service must be available on 

which cooperatives are authorized by § 12- equal terms, in order to satisfy the un- 

1021, that "of supplying electric energy doubted rule that the power to condemn 

and promoting and extending the use can only be delegated for, at least princi- 

thereof in rural areas," is the obligation of pally, a public use. There is no "public" 

such corporations to make membership which is separable from the members in 

available, without arbitrary or unreason- the rural areas where the cooperatives do 

able limitations thereon, to all coming business; and they at once take the place 

within the purview of that purpose. Book- of the stockholders and customers of pri- 



hart v. Central Elec. Power Cooperative, 
219 S. C. 414, 65 S. E. 2d 781 (1951). 

The customers, which are called "mem- 
bers" of the cooperatives, are in the ter- 

§ 12-1037. Refunds to members. 

Limitations as to funds. — Rural electric 
cooperative has only the limited powers 
with regard to its funds as set forth in this 
section. Byrd v. Blue Ridge Rural Elec- 
trical Cooperative, 118 F. Supp. 868 (1954). 
Liability for tort is hazard that may be 
considered as part of expenses of operation 
and maintenance of facilities of electric co- 



vately owned utilities; they are both own- 
ers and customers. Bookhart v. Central 
Elec. Power Cooperative, 219 S. C. 414, 
65 S. E. 2d 781 (1951). 



operatives provided for in subparagraph 
(1) of this section. Bush v. Aiken Electric 
Cooperative, 226 S. C. 442, 85 S. E. 2d 716 
(1955). 

Stated in Bush v. Aiken Electric Co- 
operative, 226 S. C. 442, 85 S. E. 2d 716 
(1955). 



Article 6. 
Dissolution. 
§ 12-1062. Board of trustees to wind up affairs. 

Stated in Bush v. Aiken Electric Co- 
operative, 226 S. C. 442, 85 S. E. 2d 716 
(1955) 



264 



12-1101 



1960 Cumulative Supplement 



§ 12-1101 



CHAPTER 16. 

State Business Development Corporations. 



Article 1. 
General Provisions. 



Sec. 
12-1 
12-1 

12-1 

12-1 
12-1 



12-1 
12-1 



12-1 
12-1 



12-1 
12-1 
12-1 
12-1 

12-1 

12-1 

12-1 



Sec. 

12-1128. 

12-1129. 



103 
104 
105 



141 
142 



106 
107 



101. Definitions. 

102. Chapter void if no corporation or- 
ganized by July 1 1961. 

Money deposits not to be received. 

Depositories. 12-1 

Establishment, maintenance and 12-1 
determination of surplus; deter- 
mination of net earnings. 12-1143. 

Credit of State not pledged. 

Other corporations, trusts and 12-1144. 
members may acquire, etc., obli- 
gations and shares of stock. 12-1145. 

108. Tax exemptions for corporation, 

its obligations and financial insti- 12-1146. 
tutions' deposits. 

109. Tax credits for corporation losses 

by obligation holders. 

Article 2. 12-1151. 

Incorporation and Amendments; 12-1152. 

Organization; Powers. 12-1153. 

121. Who may organize a corporation. 12-1154. 

122. Manner of incorporation. 

123. Contents of declaration of charter. 

124. Charter void if business not begun 12-1161. 

in three years. 

125. First meeting to be by notice or 12-1162. 

agreement. 

126. Same; organization required; quo- 12-1163. 

rum. 

127. Powers. 

Article 1. 



Amendment of charter. 

Same; Secretary of State's ap- 
proval required; filing; time 
effective. 

Article 3. 
Members and Stockholders. 

Term of membership; withdrawal. 

Financial institutions may be mem- 
bers. 

Application for membership; time 
effective. 

Powers of stockholders and mem- 
bers. 

Votes permitted stockholders and 
members. 

Voting by stockholders and mem- 
bers; vote required for action. 

Article 4. 
Management; Officers. 

Management of corporation. 

Board of directors. 

Liability of officers for losses. 

Offices. 

Article 5. 
Loans to Corporation. 

Financial institutions may make 
loans. 

Members to make loans to cor- 
poration; terms and conditions. 

Same; member withdrawn not ob- 
ligated to make loans. 



General Provisions. 
§ 12-1101. Definitions. 

As used in this chapter, the following words and phrases unless differently de- 
fined or described shall have the meanings and references as follows : 

(1) Corporation. A South Carolina business development corporation created 
under this chapter. 

(2) Financial institution. Any banking corporation or trust company, building 
and loan association, insurance company or related corporation, partnership, foun- 
dation, or other institution engaged primarily in lending or investing funds, in- 
cluding the Small Business Administration, an agency of the United States Gov- 
ernment. 

(3) Member. Any financial institution authorized to do business within this 
State which shall undertake to lend money to a corporation created under this 
chapter, upon its call, and in accordance with the provisions of this chapter. 

(4) Board oj directors. The board of directors of the corporation created under 
this chapter. 

(5) Loan limit. For any member, the maximum amount permitted to be out- 
standing at one time on loans made by such member to the corporation as deter- 
mined under the provisions of this chapter. 

1958 (50) 1886; 1960 (51) 1937. 

Effect of amendment. — The 1960 amend- 
ment as to item (2) added Small Business 
Administration. 



265 



§ 12-1102 CoDB or Laws op South Carolina 

§ 12-1102. Chapter void if no corporation organized by July 1 1961. 

If, within three years from July 1 1958, no corporation is organized pursuant to 
this chapter, then and in that event, this chapter shall become null and void. 
1958 (50) 1886. 

§ 12-1103. Money deposits not to be received. 

The corporation shall not receive money on deposit. 
1958 (50) 1886. 

§ 12-1104. Depositories. 

The corporation shall not deposit any of its funds in any banking institution 
unless such institution has been designated as a depository by a vote of a majority 
of the directors present at an authorized meeting of the board of directors, exclusive 
of any director who is an officer or director of the depository so designated. 

1958 (50) 1886. 

§ 12-1105. Establishment, maintenance and determination of surplus; de- 
termination of net earnings. 

Each year the corporation shall set apart as earned surplus not less than ten per 
cent of its net earnings for the preceding fiscal year until such surplus shall be 
equal in value to one-half of the amount paid in on the capital stock then outstand- 
ing. Whenever the amount of surplus established herein shall become impaired, it 
shall be built up to the required amount in the manner provided for its original 
accumulation. Net earnings and surplus shall be determined by the board of di- 
rectors, after providing for such reserves as the directors deem desirable, and the 
director's determination made in good faith shall be conclusive on all persons. 

1958 (50) 1886. 

§ 12-1106. Credit of State not pledged. 

Under no circumstances is the credit of the State pledged herein. 
1958 (50) 1886. 

§ 12-1107. Other corporations, trusts and members may acquire, etc., obli- 
gations and shares of stock. 

Notwithstanding any provision of any general or special law or any provision 
in their respective charters, agreements of association, articles of organization or 
trust indentures, domestic corporations organized for the purpose of carrying on 
business within this State including without implied limitation any public utility 
companies and insurance and casualty companies and foreign corporations licensed 
to do business in the State, trusts and members of the corporation may acquire, 
purchase, hold, sell, assign, transfer, mortgage, pledge or otherwise dispose of any 
bonds, securities or other evidences of indebtedness created by, or the shares of the 
capital stock of, the corporation, and while owners of such stock exercise all the 
rights, powers and privileges of ownership, including the right to vote thereon, all 
without the approval of any regulatory authority of the State. But the amount of 
the capital stock of the corporation which may be acquired by any member pur- 
suant to the authority granted herein shall not exceed ten per cent of the loan limit 
of such member. The amount of capital stock of the corporation which any mem- 
ber is authorized to acquire pursuant to the authority granted herein is in addi- 
tion to the amount of capital stock in corporations which such member may other- 
wise be authorized to acquire. A financial institution which does not become a mem- 
ber of the corporation shall not be permitted to acquire any shares of the capital 
stock of the corporation. 

1958 (50) 1886. 

266 



§ 12-1108 1960 Cumulative Supplement § 12-1122 

§ 12-1108. Tax exemptions for corporation, its obligations and financial in- 
stitutions' deposits. 

The corporation shall not be subject to any taxes based upon or measured by in- 
come which may be levied by the State ; and the securities, evidences of indebtedness 
and shares of the capital stock issued by the corporation established under the provi- 
sions of this chapter, their transfer, and income therefrom, and deposits of financial 
institutions invested therein, shall at all times be free from taxation within the 
State. 

1958 (SO) 1886. 

§ 12-1109. Tax credits for corporation losses by obligation holders. 

Any stockholder, member or other holder of any securities, evidences of in- 
debtedness or shares of the capital stock of the corporation, who realizes a loss from 
the sale, redemption or other disposition of any securities, evidences of indebted- 
ness or shares of the capital stock of the corporation, including any such loss re- 
alized on a partial or complete liquidation of the corporation, and who is not en- 
titled to deduct such loss in computing any of such stockholder's, member's or 
other holder's taxes to the State, shall be entitled to credit against any taxes sub- 
sequently becoming due to the State from such stockholder, member or other 
holder, a percentage of such loss equivalent to the highest rate of tax assessed for 
the year in which the loss occurs upon mercantile and business corporations. 

1958 (50) 1886. 

Article 2. 
Incorporation and Amendments; Organization; Powers. 
§ 12-1121. Who may organize a corporation. 

Twenty-five or more persons, a majority of whom shall be residents of this State, 
who may desire to create a business development corporation under the provisions 
of this chapter, for the purpose of promoting, developing and advancing the pros- 
perity and economic welfare of the State, and, to that end, to exercise the powers 
and privileges provided in this chapter, may be incorporated in the manner provided 
in § 12-1122. 

1958 (50) 1886. 

§ 12-1122. Manner of incorporation. 

Such persons shall, by declaration of charter filed with the Secretary of State, 
under their hands and seals, set forth : 

(1) The name of the corporation which shall include the words "Business De- 
velopment Corporation of South Carolina" ; 

(2) The location of the principal office of the corporation; 

(3) The purpose for which the corporation is founded, which shall include the 
following : 

The purposes of the corporation shall be : 

(a) to promote, stimulate, develop and advance the business prosperity and 
economic welfare of the State of South Carolina and its citizens ; 

(b) to encourage and assist through loans, investments or other business trans- 
actions, in the location of new business and industry in this State and to rehabilitate 
and assist existing business and industry ; 

(c) and so to stimulate and assist in the expansion of all kinds of business activity 
which will tend to promote the business development and maintain the economic 
stability of this State, provide maximum opportunities for employment, encourage 
thrift and improve the standard of living of the citizens of this State ; 

267 Volume 1 



§ 12-1123 Code of Laws of South Carolina § 12-1127 

(d) similarly, to cooperate and act in conjunction with other organizations, 
public or private, in the promotion and advancement of industrial, commercial, agri- 
cultural and recreational developments in this State ; and 

(e) to provide financing for the promotion, development and conduct of all 
kinds of business activity in this State. 

1958 (SO) 1886. 

§ 12-1123. Contents of declaration of charter. 

The declaration of charter shall set forth (a) the amount of total authorized 
capital stock, (b) the number of shares in which it is divided, (c) the par value 
of each share, (d) the amount of capital stock with which it will commence busi- 
ness, (e) and, if there is more than one class of stock, a description of the different 
classes, and (f) the names and post office addresses of the subscribers of stock and 
the number of shares subscribed by each. The aggregate of the subscription shall be 
the amount of capital with which the corporation will commence business. It may 
also contain any provision consistent with the laws of this State for the regulation 
of the affairs of the corporation or creating, defining, limiting and regulating its 
powers. The declaration of charter shall be in accordance with the provisions of 
§ 12-58. 

1958 (50) 1886. 

§ 12-1124. Charter void if business not begun in three years. 

If a corporation organized pursuant to this chapter shall fail to begin business 
within three years from the effective date of its charter, then the charter shall be- 
come null and void. 

1958 (50) 1886. 

§ 12-1125. First meeting to be by notice or agreement. 

The first meeting of the corporation shall be called by a notice signed by three or 
more of the incorporators, stating the time, place and purpose of the meeting, a 
copy of which notice shall be mailed, or delivered, to each incorporator at least five 
days before the day appointed for the meeting. The first meeting may be held with- 
out such notice upon agreement in writing to that effect signed by all the incor- 
porators. There shall be recorded in the minutes of the meeting a copy of the 
notice or of such unanimous agreement of the incorporators. 

1958 (50) 1886. 

§ 12-1126. Same ; organization required ; quorum. 

At such first meeting the incorporators shall organize by the election by ballot of 
a temporary clerk, by the adoption of bylaws, by the election by ballot of directors 
and by action upon such other matters within the powers of the corporation as the 
incorporators may see fit. The temporary clerk shall be sworn and shall make and 
attest a record of the proceedings. Ten of the incorporators shall be a quorum for 
the transaction of business. 

1958 (50) 1886. 

§ 12-1127. Powers. 

In furtherance of the purposes of the corporation and in addition to the powers 
conferred on business corporations by the provisions of Title 12, the corporation 
shall, subject to the restrictions and limitations herein contained, have the following 
powers : 

( 1 ) To elect, appoint and employ officers, agents and employees. 

(2) To make contracts and incur liabilities for any of the purposes of the cor- 
poration ; but it shall not incur any secondary liability by way of guaranty or endorse- 
ment of the obligations of any person or trust, or in any other manner. 

268 



§ 12-1127 1960 Cumulative Supplement § 12-1127 

(3) To borrow money only from the members and the Small Business Adminis- 
tration, an agency of the United States Government, for any of the purposes of the 
corporation ; to issue therefor its bonds, debentures, notes or other evidences of 
indebtedness, whether secured or unsecured, and to secure the same by mortgage, 
pledge, deed of trust or other lien on its property, franchises, rights and privileges 
of every kind and nature or any part thereof or interest thereon, without securing 
stockholder or member approval, but no loan to the corporation shall be secured 
in any manner unless all outstanding loans to the corporation shall be secured 
equally and ratably in proportion to the unpaid balance of such loans and in the 
same manner. 

(4) To make loans, or to participate with the Small Business Administration, 
an agency of the United States Government, in loans to any person or trust, and 
to establish and regulate the terms and conditions with respect to any such loans 
and the charges for interest and service connected therewith ; but it shall not ap- 
prove any application for a loan unless and until the person applying for such loan 
shall show that he has applied for the loan through ordinary banking channels and 
it has been refused by at least one bank or other financial institution. 

(5) To purchase, receive, hold, lease or otherwise acquire, and to sell, convey, 
transfer, lease or otherwise dispose of, real and personal property, together with 
such rights and privileges as may be incidental and appurtenant thereto and the use 
thereof, including, but not restricted to, any real or personal property acquired by 
the corporation from time to time in the satisfaction of debts or enforcement of 
obligations. 

(6) To acquire the good will, business rights, real and personal property, and 
other assets, or any part thereof, or interest thereon, of any person or trust, and 
to assume, undertake or pay the obligations, debts and liabilities of any such per- 
son or trust. 

(7) To acquire improved or unimproved real estate for the purpose of con- 
structing industrial plants or other business establishments thereon or for the 
purpose of disposing of such real estate to others for the construction of industrial 
plants or other business establishments. 

(8) To transfer, lease or otherwise dispose of industrial plants or business 
establishments. 

(9) To acquire, subscribe for, own, hold, sell, assign, transfer, mortgage, pledge 
or otherwise dispose of the stock, shares, bonds, debentures, notes or other securi- 
ties and evidences of interest in, or indebtedness of, any person or trust, and while 
the owner or holder thereof to exercise all the rights, powers and privileges of own- 
ership, including the right to vote thereon. 

(10) To mortgage, pledge or otherwise encumber any property right or thing 
of value, acquired pursuant to the powers contained in items 5 to 9 above, as se- 
curity for the payment of any part of the purchase price thereof. 

(11) To cooperate with and avail itself of the facilities of the State Develop- 
ment Board and any similar governmental agencies, including the Small Business 
Administration, an agency of the United States Government. 

(12) To cooperate with and assist, and otherwise encourage, organizations in 
the various communities of the State in the promotion, assistance and development 
of the business prosperity and economic welfare of such communities or of this 
State or of any part thereof. 

(13) To do all acts and things necessary or convenient to carry out the powers 
expressly granted in this chapter. 

19S8 (50) 1886; 1960 (51) 1937. 

Effect of amendment. — The 1960 amend- 
ment as to items (3), (4) and (11) added 
Small Business Administration. 

269 



§ 12-1128 Code ok Laws ok South Carolina § 12-1144 

§ 12-1128. Amendment of charter. 

The charter may be amended by the votes of the stockholders and the members 
of the corporation, voting separately by classes, and such amendments shall require 
approval by the affirmative vote of two-thirds of the votes to which the stockholders 
shall be entitled and two-thirds of the votes to which the members shall be en- 
titled ; provided, that no amendment of the charter which is inconsistent with the 
general purposes expressed herein, which authorizes any additional class of capital 
stock to be issued or which eliminates or curtails the right of the Secretary of State 
to examine the corporation or the obligation of the corporation to make reports 
as provided -by law shall be made without amendment of this chapter ; and pro- 
vided, further, that no amendment of the charter which increases the obligation of 
a member to make loans to the corporation, makes any change in the principal 
amount, interest rate, maturity date, in the security or credit position of any out- 
standing loan of a member to the corporation, affects a member's right to with- 
draw from membership as provided in § 12-1141 or affects a member's voting 
rights as provided in §§ 12-1144 to 12-1146, shall be made without the consent of 
each member affected by such amendment. 

1958 (SO) 1886. 

§ 12-1129. Same ; Secretary of State's approval required ; filing ; time effective. 

Within thirty days after any meeting at which amendment of the charter has 
been adopted, articles of amendment signed and sworn to by the president, treas- 
urer and a majority of the directors, setting forth such amendment and the due 
adoption thereof, shall be submitted to the Secretary of State, who shall examine 
them and if he finds that they conform to the requirements of this chapter, shall so 
certify and endorse his approval thereon. Thereupon, the articles of amendment 
shall be filed in the office of the Secretary of State. No such amendment shall take 
effect until such articles of amendment shall have been so filed. 

1958 (50) 1886. 

Article 3. 

Members and Stockholders. 

§ 12-1141. Term of membership; withdrawal. 

Membership in the corporation shall be for the duration of the corporation ; but 
upon written notice given to the corporation three years in advance, a member may 
withdraw from membership in the corporation at the expiration date of such notice. 

1958 (SO) 1886. 

§ 12-1142. Financial institutions may be members. 

Notwithstanding any provision of any general or special law or any provision 
in their respective charters, agreements of association, articles of organization or 
trust indentures, financial institutions may become members of the corporation as 
provided herein. 

1958 (SO) 1886. 

§ 12-1143. Application for membership; time effective. 

Any financial institution may request membership in the corporation by making 
application to the board of directors on such form and in such manner as the board 
of directors may require and membership shall become effective upon acceptance 
of such application by the board. 

1958 (SO) 1886. 

§ 12-1144. Powers of stockholders and members. 

The stockholders and the members of the corporation shall have the following 
powers of the corporation : 

270 



§ 12-1145 1960 Cumulative Supplement § 12-1152 

( 1 ) To elect directors ; 

(2) To make, amend and repeal bylaws ; 

(3) To amend the charter; 

(4) To exercise such other of the powers of the corporation as may be con- 
ferred on the stockholder and the members by the bylaws. 

1958 (SO) 1886. 

§ 12-1145. Votes permitted stockholders and members. 

Each stockholder shall have one vote, in person or by proxy, for each share of 
capital stock held by him, and each member shall have one vote, in person or by 
proxy, except that any member having a loan limit of more than one thousand 
dollars shall have one additional vote, in person or by proxy, for each additional 
one thousand dollars which such member is authorized to have outstanding on 
loans to the corporation at any one time as determined under item 3 of § 12-1162. 

1958 (50) 1886. 

§ 12-1146. Voting by stockholders and members ; vote required for action. 

As to all matters requiring action by the stockholders and the members of the 
corporation, the stockholders and the members shall vote separately thereon by 
classes, and, except as otherwise herein provided, such matters shall require the 
affirmative vote of a majority of the votes to which the stockholders present or 
represented at the meeting shall be entitled and the affirmative vote of a majority 
of the votes to which the members present or represented at the meeting shall be 
entitled. 

1958 (50) 1886. 

Article 4. 
Management ; Officers. 
§ 12-1151. Management of corporation. 

The business and affairs of the corporation shall be managed and conducted by 
a board of directors, a president and treasurer, and such other officers and such 
agents as the corporation by its bylaws shall authorize. 

1958 (50) 1886. 

§ 12-1152. Board of directors. 

The board of directors shall consist of such number, not more than twenty-one, 
as shall be determined in the first instance by the incorporators and thereafter 
annually by the members and the stockholders of the corporation. The board of 
directors may exercise all the powers of the corporation except such as are con- 
ferred by law or by the bylaws of the corporation upon the stockholders or mem- 
bers and shall choose and appoint all the agents and officers of the corporation 
and fill all vacancies except vacancies in the office of director. The board of di- 
rectors shall be elected in the first instance by the incorporators and thereafter 
at each annual meeting of the corporation, or, if no annual meeting shall be held 
in any year at the time fixed by the bylaws, at a special meeting held in lieu of 
the annual meeting. At each annual meeting, or at each special meeting held in lieu 
of the annual meeting, the members of the corporation shall elect two-thirds of the 
board of directors and the stockholders shall elect the remaining directors. The 
directors shall hold office until the next annual meeting of the corporation or special 
meeting held in lieu of the annual meeting after their election and until their suc- 
cessors are elected and qualified, unless sooner removed in accordance with the 
provisions of the bylaws. Any vacancy in the office of a director elected by the 
members shall be filled by the directors elected by the members, and any vacancy 

271 



§ 12-1153 Code of Laws of South Carolina § 12-1162 

in the office of a director elected by the stockholders shall be filled by the directors 
elected by the stockholders. 
1958 (50) 1886. 

§ 12-1153. Liability of officers for losses. 

Directors and officers shall not be responsible for losses unless the losses shall 
have been occasioned by the wilful misconduct of such directors and officers. 
1958 (50) 1886. 

§ 12-1154. Offices. 

The corporation may have offices in such other places within the State other 
than its principal office as stated in its declaration of charter in § 12-1122 as may 
be fixed by its board of directors. 
1958 (50) 1886. 

Article 5. 
Loans to Corporation. 

§ 12-1161. Financial institutions may make loans. 

Notwithstanding any provision of any general or special law or any provision 
in their respective charters, agreements of association, articles of organization or 
trust indentures, financial institutions may make loans to the corporation as pro- 
vided herein. 

1958 (50) 1886. 

§ 12-1162. Members to make loans to corporation; terms and conditions. 

Each member of the corporation shall make loans to the corporation as and 
when called upon by it to do so on such terms and other conditions as shall be 
approved from time to time by the board of directors, subject to the following 
conditions : 

(1) All loan limits shall be established at the thousand dollar amount nearest 
to the amount computed in accordance with the provisions of this section. 

(2) No loan to the corporation shall be made if immediately thereafter the 
total amount of the obligations of the corporation would exceed ten times the 
amount then paid in on the outstanding capital stock of the corporation. 

(3) The total amount outstanding on loans to the corporation made by any 
member at any one time, when added to the amount of the investment in capital 
stock of the corporation then held by such member, shall not exceed : 

(a) Twenty per cent of the total amount then outstanding on loans to the 
corporation by all members, including in the total amount outstanding, amounts 
validly called for loan but not yet loaned. 

(b) The following limit, to be determined as of the time such member becomes 
a member on the basis of the audited balance sheet of such member at the close 
of its fiscal year immediately preceding its application for membership, or, in the 
case of an insurance company, its last annual statement to the Chief Insurance Com- 
missioner : 

i. Two per cent of the capital and surplus of commercial banks and trust com- 
panies ; 

ii. One per cent of the total outstanding loans made by a building and loan as- 
sociation ; but any business development corporation created pursuant to this chap- 
ter may in its charter by appropriate amendment thereto provide that the loan 
limit of a building and loan association member shall be only one-half of one per 
cent of the total outstanding loans made by it ; 

iii. One per cent of the capital and unassigned surplus of stock insurance com- 
panies, except fire insurance companies; 

272 



12-1163 



1960 Cumulative Supplement 



12-1163 



iv. One per cent of the unassigned surplus of mutual insurance companies, except 
fire insurance companies ; 

v. One-tenth of one per cent of the assets of fire insurance companies ; and 
vi. Such limits as may be approved by the board of directors of the corpora- 
tion for other financial institutions. 

(4) Subject to paragraph (3) (a) of this section, each call made by the cor- 
poration shall be prorated among the members of the corporation in substantially 
the same proportion that the adjusted loan limit of each member bears to the ag- 
gregate of the adjusted loan limits of all members. The adjusted loan limit of a 
member shall be the amount of such member's loan limit, reduced by the balance 
of outstanding loans made by such member to the corporation and the investment 
in capital stock of the corporation held by such member at the time of such call. 

(5) All loans to the corporation by members shall be evidenced by bonds, de- 
bentures, notes or other evidences of indebtedness of the corporation which shall 
be freely transferable at all times, and which shall bear interest at a rate of not less 
than one-quarter of one per cent in excess of the rate of interest determined by the 
board of directors to be the prime rate prevailing at the date of issuance thereof 
on unsecured commercial loans. 

1958 (50) 1886; 1960 (51) 1646. 

Effect of amendment. — The 1960 amend- 
ment changed Insurance Commissioner to 
Chief Insurance Commissioner. 

§ 12-1163. Same; member withdrawn not obligated to make loans. 

A member shall not be obligated to make any loans to the corporation pursuant 
to calls made subsequent to the withdrawal of the member. 
1958 (50) 18S6. 

CHAPTER 17. 

County Business Development Corporations. 



12-1202 
12-1203. 
12-1204 



12-1205. 
12-1206. 



12-1207. 



Article 1. Sec. 

General Provisions. 12-1228. 

Sec. 12-1229. 

12-1201. Definitions. 

Money deposits not to be received. 
Depositories. 

Establishment, maintenance and 
determination of surplus; deter- 12-1241. 
mination of net earnings. 12-1242. 

Credit of county not pledged. 
Other corporations, trusts and 12-1243. 
members may acquire, etc., obli- 
gations and shares of stock. 12-1244. 
Tax exemptions for corporation, 
its obligations and financial insti- 12-1245. 
tutions' deposits. 
12-1208. Tax credits for corporation losses 12-1246. 
by obligation holders. 
Article 2. 
Incorporation and Amendments; 

Organization; Powers. 12-1251. 

12-1221. Who may organize a corporation. 12-1252. 
12-1222. Manner of incorporation. 12-1253. 

12-1223. Contents of declaration of charter. 
12-1224. Charter void if business not begun 

in three years. 12-1261. 

12-1225. First meeting to be by notice or 

agreement. 12-1262. 

12-1226. Same; organization required; quo- 
rum. 12-1263. 
12-1227. Powers. 

273 



Amendment of charter. 

Same; Secretary of State's ap- 
proval required; filing; time 
effective. 

Article 3. 
Members and Stockholders. 

Term of membership; withdrawal. 

Financial institutions may be mem- 
bers. 

Application for membership; time 
effective. 

Powers of stockholders and mem- 
bers. 

Votes permitted stockholders and 
members. 

Voting by stockholders and mem- 
bers; vote required for action. 

Article 4. 
Management; Officers. 

Management of corporation. 

Board of directors. 

Liability of officers for losses. 
Article 5. 
Loans to Corporation. 

Financial institutions may make 
loans. 

Members to make loans to cor- 
poration; terms and conditions. 

Same; member withdrawn not ob- 
ligated to make loans. 



§ 12-1201 Code of Laws of South Carolina § 12-1206 

Article 1. 

General Proz'isions. 

§ 12-1201. Definitions. 

As used in this chapter, the following words and phrases unless differently de- 
fined or described shall have the meanings and references as follows : 

(1) Corporation. A county business development corporation created under this 
chapter. 

(2) Financial institution. Any banking corporation or trust company, building 
and loan association, insurance company or related corporation, partnership, foun- 
dation, or other institution engaged primarily in lending or investing funds. 

(3) Member. Any financial institution authorized to do business within this 
State which shall undertake to lend money to a corporation created under this 
chapter, upon its call, and in accordance with the provisions of this chapter. 

(4) Board of directors. The board of directors of the corporation created under 
this chapter. 

(5) Loan limit. For any member, the maximum amount permitted to be out- 
standing at one time on loans made by such member to the corporation as deter- 
mined under the provisions of this chapter. 

1960 (51) 1907. 

§ 12-1202. Money deposits not to be received. 

The corporation shall not receive money on deposit. 
1960 (51) 1907. 

§ 12-1203. Depositories. 

The corporation shall not deposit any of its funds in any banking institution 
unless such institution has been designated as a depository by a vote of a majority 
of the directors present at an authorized meeting of the board of directors, exclusive 
of any director who is an officer or director of the depository so designated. 

1960 (51) 1907. 

§ 12-1204. Establishment, maintenance and determination of surplus; de- 
termination of net earnings. 

Each year the corporation shall set apart as earned surplus not less than ten per 
cent of its net earnings for the preceding fiscal year until such surplus shall be 
equal in value to one-half of the amount paid in on the capital stock then outstand- 
ing. Whenever the amount of surplus established herein shall become impaired, it 
shall he built up to the required amount in the manner provided for its original 
accumulation. Net earnings and surplus shall be determined by the board of di- 
rectors, after providing for such reserves as the directors deem desirable, and the 
directors' determination made in good faith shall be conclusive on all persons. 

1960 (51) 1907. 

§ 12-1205. Credit of county not pledged. 

Under no circumstances is the credit of the county pledged herein. 
1960 (51) 1907. 

§ 12-1206. Other corporations, trusts and members may acquire, etc., obli- 
gations and shares of stock. 
Notwithstanding any provision of any general or special law or any provision 
in their respective charters, agreements of association, articles of organization or 
trust indentures, domestic corporations organized for the purpose of carrying on 
business within this State including without implied limitation any public utility 
companies and insurance and casualty companies and foreign corporations licensed 

274 



§ 12-1207 1960 Cumulative Supplement § 12-1222 

to do business in the State, trusts and members of the corporation may acquire, 
purchase, hold, sell, assign, transfer, mortgage, pledge or otiierwise dispose of any 
bonds, securities or other evidences of indebtedness created by, or the shares of the 
capital stock of, the corporation, and while owners of such stock exercise all the 
rights, powers and privileges of ownership, including the right to vote thereon, all 
without the approval of any regulatory authority of the State. But the amount of 
the capital stock of the corporation which may be acquired by any member pur- 
suant to the authority granted herein shall not exceed ten per cent of the loan limit 
of such member. The amount of capital stock of the corporation which any mem- 
ber is authorized to acquire pursuant to the authority granted herein is in addi- 
tion to the amount of capital stock in corporations which such member may other- 
wise be authorized to acquire. A financial institution which does not become a mem- 
ber of the corporation shall not be permitted to acquire any shares of the capital 
stock of the corporation. 
1960 (SI) 1907. 

§ 12-1207. Tax exemptions for corporation, its obligations and financial in- 
stitutions' deposits. 

The corporation shall not be subject to any taxes based upon or measured by in- 
come which may be levied by the State ; and the securities, evidences of indebtedness 
and shares of the capital stock issued by the corporation established under the provi- 
sions of this chapter, their transfer, and income therefrom, and deposits of financial 
institutions invested therein, shall at all times be free from taxation within the 
State. 

1960 (51) 1907. 

§ 12-1208. Tax credits for corporation losses by obligation holders. 

Any stockholder, member or other holder of any securities, evidences of in- 
debtedness or shares of the capital stock of the corporation, who realizes a loss from 
the sale, redemption or other disposition of any securities, evidences of indebted- 
ness or shares of the capital stock of the corporation, including any such loss re- 
alized on a partial or complete liquidation of the corporation, and who is not en- 
titled to deduct such loss in computing any of such stockholder's, member's or 
other holder's taxes to the State, shall be entitled to credit against any taxes sub- 
sequently becoming due to the State from such stockholder, member or other 
holder, a percentage of such loss equivalent to the highest rate of tax assessed for 
the year in which the loss occurs upon mercantile and business corporations. 

1960 (51) 1907. 

Article 2. 
Incorporation and Amendments ; Organization; Powers. 
§ 12-1221. Who may organize a corporation. 

Ten or more persons, a majority of whom shall be residents of a county of this 
State, who may desire to create a business development corporation under the pro- 
visions of this chapter, for the purpose of promoting, developing and advancing 
the prosperity and economic welfare of the county, and, to that end, to exercise 
the powers and privileges provided in this chapter, may be incorporated in the 
manner provided in § 12-1222. 

1960 (51) 1907. 

§ 12-1222. Manner of incorporation. 

Such persons shall, by declaration of charter filed with the Secretary of State, 
under their hands and seals, set forth : 

(1) The name of the corporation which shall include the words "Business De- 
velopment Corporation of County" ; 

275 



§ 12-1223 Code ok Laws of South Carolina § 12-1226 

(2) The location of the principal office of the corporation within the county 
as may be fixed by the board of directors ; 

(3) The purpose for which the corporation is founded, which shall include the 
following : 

(a) to promote, stimulate, develop and advance the business prosperity and 
economic welfare of the county in which formed and its citizens ; 

(b) to encourage and assist through loans, investments or other business trans- 
actions, in the location of new business and industry in the county and to rehabilitate 
and assist existing business and industry ; 

(c) and so to stimulate and assist in the expansion of all kinds of business activity 
which will tend to promote the business development and maintain the economic 
stability of the county, provide maximum opportunities for employment, encourage 
thrift and improve the standard of living of the citizens of the county ; 

(d) to cooperate and act in conjunction with other organizations, public or 
private, in the promotion and advancement of industrial, commercial, agricultural 
and recreational developments in the county ; and 

(e) to provide financing for the promotion, development and conduct of all 
kinds of business activity in the county. 

1960 (51) 1907. 

§ 12-1223. Contents of declaration of charter. 

The declaration of charter shall set forth (a) the amount of total authorized 
capital stock, (b) the number of shares in which it is divided, (c) the par value 
of each share, (d) the amount of capital stock with which it will commence busi- 
ness, (e) and, if there is more than one class of stock, a description of the different 
classes, and (f) the names and post office addresses of the subscribers of stock and 
the number of shares subscribed by each. The aggregate of the subscription shall be 
the amount of capital with which the corporation will commence business. It may 
also contain any provision consistent with the laws of this State for the regulation 
of the affairs of the corporation or creating, defining, limiting and regulating its 
powers. The declaration of charter shall be in accordance with the provisions of 
§ 12-58. 

1960 (51) 1907. 

§ 12-1224. Charter void if business not begun in three years. 

If a corporation organized pursuant to this chapter shall fail to begin business 
within three years from the effective date of its charter, then the charter shall be- 
come null and void. 

1960 (51) 1907. 

§ 12-1225. First meeting to be by notice or agreement. 

The first meeting of the corporation shall be called by a notice signed by three or 
more of the incorporators, stating the time, place and purpose of the meeting, a 
copy of which notice shall be mailed, or delivered, to each incorporator at least five 
days before the day appointed for the meeting. The first meeting may be held with- 
out such notice upon agreement in writing to that effect signed by all the incor- 
porators. There shall be recorded in the minutes of the meeting a copy of the no- 
tice or of such unanimous agreement of the incorporators. 

1960 (51) 1907. 

§ 12-1226. Same; organization required; quorum. 

At such first meeting the incorporators shall organize by the choice of a tem- 
porary clerk, by the adoption of bylaws, by the election by ballot of directors and 
by action upon such other matters within the powers of the corporation as the 

276 



§ 12-1227 1960 Cumulative Supplement § 12-1227 

incorporators may see fit. The temporary clerk shall be sworn and shall make and 
attest a record of the proceedings. Six of the incorporators shall be a quorum for 
the transaction of business. 

1960 (51) 1907. .' 

§ 12-1227. Powers. 

In furtherance of the purposes of the corporation and in addition to the powers 
conferred on business corporations by the provisions of Title 12, the corporation 
shall, subject to the restrictions and limitations herein contained, have the following 
powers : 

(1) To elect, appoint and employ officers, agents and employees. 

(2) To make contracts and incur liabilities for any of the purposes of the cor- 
poration ; but it shall not incur any secondary liability by way of guaranty or en- 
dorsement of the obligations of any person or trust, or in any other manner. 

(3) To borrow money from the members only, for any of the purposes of the 
corporation ; to issue therefor its bonds, debentures, notes or other evidences of 
indebtedness, whether secured or unsecured, and to secure the same by mortgage, 
pledge, deed of trust or other lien on its property, franchises, rights and privileges 
of every kind and nature or any part thereof or interest thereon, without securing 
stockholder or member approval, but no loan to the corporation shall be secured 
in any manner unless all outstanding loans to the corporation shall be secured 
equally and ratably in proportion to the unpaid balance of such loans and in the 
same manner. 

(4) To make loans to any person or trust, and to establish and regulate the 
terms and conditions with respect to any such loans and the charges for interest and 
service connected therewith ; but it shall not approve any application for a loan 
unless and until the person applying for such loan shall show that he has applied 
for the loan through ordinary banking channels and it has been refused by at 
least one bank or other financial institution. 

(5) To purchase, receive, hold, lease or otherwise acquire, and to sell, convey, 
transfer, lease or otherwise dispose of, real and personal property, together with 
such rights and privileges as may be incidental and appurtenant thereto and the use 
thereof, including, but not restricted to, any real or personal property acquired by 
the corporation from time to time in the satisfaction of debts or enforcement of 
obligations. 

(6) To acquire the good will, business rights, real and personal property, and 
other assets, or any part thereof, or interest thereon, of any person or trust, and 
to assume, undertake or pay the obligations, debts and liabilities of any such per- 
son or trust. 

(7) To acquire improved or unimproved real estate for the purpose of con- 
structing industrial plants or other business establishments thereon or for the 
purpose of disposing of such real estate to others for the construction of industrial 
plants or other business establishments. 

(8) To transfer, lease or otherwise dispose of industrial plants or business 
establishments. 

(9) To acquire, subscribe for, own, hold, sell, assign, transfer, mortgage, pledge 
or otherwise dispose of, the stock, shares, bonds, debentures, notes or other securi- 
ties and evidences of interest in. or indebtedness of, any person or trust, and while 
the owner or holder thereof to exercise all the rights, powers and privileges of own- 
ership, including the right to vote thereon. 

(10) To mortgage, pledge or otherwise encumber any property right or thing 
of value, acquired pursuant to the powers contained in items 5 to 9 above, as se- 
curity for the payment of any part of the purchase price thereof. 

277 



§ 12-1228 Code of Laws of South Carolina § 12-1242 

(11) To cooperate with and avail itself of the facilities of the State Develop- 
ment Board and any similar governmental agencies. 

(12) To cooperate with and assist, and otherwise encourage, organizations in 
the various communities of the county in the promotion, assistance and development 
of the business prosperity and economic welfare of such communities or of the 
county. 

(13) To do all acts and things necessary or convenient to carry out the powers 
expressly granted in this chapter. 

1960 (51) 1907. 

§ 12-1228. Amendment of charter. 

The charter may be amended by the votes of the stockholders and the members 
of the corporation, voting separately by classes, and such amendments shall require 
approval by the affirmative vote of two-thirds of the votes to which the stockholders 
shall be entitled and two-thirds of the votes to which the members shall be en- 
titled ; provided, that no amendment of the charter which is inconsistent with the 
genera] purposes expressed herein, which authorizes any additional class of capital 
stock to be issued or which eliminates or curtails the right of the Secretary of State 
to examine the corporation or the obligation of the corporation to make reports 
as provided by law shall be made without amendment of this chapter ; and pro- 
vided, further, that no amendment of the charter which increases the obligation of 
a member to make loans to die corporation, makes any change in the principal 
amount, interest rate, maturity date, in the security or credit position of any out- 
standing loan of a member to the corporation, affects a member's right to with- 
draw from membership as provided in § 12-1241 or affects a member's voting 
rights as provided in §§ 12-1244 to 12-1246, shall be made without the consent of 
each member affected by such amendment. 

1960 (51) 1907. 

§ 12-1229. Same; Secretary of State's approval required; filing; time ef- 
fective. 

Within thirty days after any meeting at which amendment of the charter has 
been adopted, articles of amendment signed and sworn to by the president, treas- 
urer and a majority of the directors, setting forth such amendment and the due 
adoption thereof, shall be submitted to the Secretary of State, who shall examine 
them and if he finds that they conform to the requirements of this chapter, shall so 
certify and endorse his approval thereon. Thereupon, the articles of amendment 
shall be filed in the office of the Secretary of State. No such amendment shall take 
effect until such articles of amendment shall have been so filed. 

1960 (51) 1907. 

Article 3. 
Members and Stockholders. 
§ 12-1241. Term of membership; withdrawal. 

Membership in the corporation shall be for the duration of the corporation ; but 
upon written notice given to the corporation three years in advance, a member may 
wihdraw from membership in the corporation at the expiration date of such notice. 

1960 (51) 1907. 

§ 12-1242. Financial institutions may be members. 

Notwithstanding any provision of any general or special law or any provision 
in their respective charters, agreements of association, articles of organization or 
trust indentures, financial institutions may become members of the corporation as 
provided herein. 

1960 (51) 1907. 

278 



§ 12-1243 1960 Cumulative Supplement § 12-1252 

§ 12-1243. Application for membership; time effective. 

Any financial institution may request membership in the corporation by making 
application to the board of directors on such form and in such manner as the board 
of directors may require and membership shall become effective upon acceptance 
of such application by the board. 

1960 (51) 1907. 

§ 12-1244. Powers of stockholders and members. 

The stockholders and the members of the corporation shall have the following 
powers of the corporation : 

( 1 ) To elect directors ; 

(2) To make, amend and repeal bylaws; 

(3) To amend the charter; 

(4) To exercise such other of the powers of the corporation as may be con- 
ferred on the stockholder and the members by the bylaws. 

1960 (51) 1907. 

§ 12-1245. Votes permitted stockholders and members. 

Each stockholder shall have one vote, in person or by proxy, for each share of 
capital stock held by him, and each member shall have one vote, in person or by 
proxy, except that any member having a loan limit of more than one thousand 
dollars shall have one additional vote, in person or by proxy, for each additional 
one thousand dollars which such member is authorized to have outstanding on 
loans to the corporation at any one time as determined under item 3 of § 12-1262. 

1960 (51) 1907. 

§ 12-1246. Voting by stockholders and members ; vote required for action. 

As to all matters requiring action by the stockholders and the members of the 
corporation, the stockholders and the members shall vote separately thereon by 
classes, and, except as otherwise herein provided, such matters shall require the 
affirmative vote of a majority of the votes to which the stockholders present or 
represented at the meeting shall be entitled and die affirmative vote of a majority 
of the votes to which the members present or represented at the meeting shall be 
entitled. 

1960 (51) 1907. 

Article 4. 
Management; Officers. 
§ 12-1251. Management of corporation. 

The business and affairs of the corporation shall be managed and conducted by 
a board of directors, a president and treasurer, and such other officers and such 
agents as the corporation by its bylaws shall authorize. 

1960 (51) 1907. 

§ 12-1252. Board of directors. 

The board of directors shall consist of such number, not more than seven, 
as shall be determined in the first instance by the incorporators and thereafter 
annually by the members and the stockholders of the corporation. The board of 
directors may exercise all the powers of the corporation except such as are con- 
ferred by law or by the bylaws of the corporation upon the stockholders or mem- 
bers and shall choose and appoint all the agents and officers of the corporation and 
fill all vacancies except vacancies in the office of director. The board of directors 
shall be elected initially by the incorporators and thereafter at each annual meeting 
of the corporation, or, if no annual meeting shall be held in any year at the time fixed 

279 



§ 12-1253 Code of Laws of South Carolina § 12-1262 

by the bylaws, at a special meeting held in lieu of the annual meeting. At each 
annual meeting, or at each special meeting held in lieu of the annual meeting, the 
members of the corporation shall elect four directors and the stockholders shall elect 
the remaining three. The directors shall hold office until the next annual meeting of 
the corporation or special meeting held in lieu of the annual meeting after their 
election and until their successors are elected and qualified, unless sooner removed 
in accordance with the provisions of the bylaws. Any vacancy in the office of a 
director elected by the members shall be filled by the directors elected by the mem- 
bers, and any vacancy in the office of a director elected by the stockholders shall be 
filled by the directors elected by the stockholders. 
1960 (51) 1907. 

§ 12-1253. Liability of officers for losses. 

Directors and officers shall not be responsible for losses unless the losses shall 
have been occasioned by the wilful misconduct of such directors and officers. 
1960 (SI) 1907. 

Article 5. 
Loans to Corporation. 

§ 12-1261. Financial institutions may make loans. 

Notwithstanding any provision of any general or special law or any provision 
in their respective charters, agreements of association, articles of organization or 
trust indentures, financial institutions may make loans to the corporation as pro- 
vided herein. 

1960 (51) 1907. 

§ 12-1262. Members to make loans to corporation; terms and conditions. 

Each member of the corporation shall make loans to the corporation as and 
when called upon by it to do so on such terms and other conditions as shall be 
approved from time to time by the board of directors, subject to the following 
conditions : 

(1) All loan limits shall be established at the thousand dollar amount nearest 
to the amount computed in accordance with the provisions of this section. 

(2) No loan to the corporation shall be made if immediately thereafter the 
total amount of the obligations of the corporation would exceed ten times the 
amount then paid in on the outstanding capital stock of the corporation. 

(3) The total amount outstanding on loans to the corporation made by any 
member at any one time, when added to the amount of the investment in capital 
stock of the corporation then held by such member, shall not exceed : 

(a) Twenty per cent of the total amount then outstanding on loans to the 
corporation by all members, including in the total amount outstanding, amounts 
validly called for loan but not yet loaned. 

(b) The following limit, to lie determined as of die time such member becomes 
a member on the basis of the audited balance sheet of such member at the close 
of its fiscal year immediately preceding its application for membership, or. in the 
case of an insurance company, its last annual statement to the Chief Insurance 
Commissioner : 

i. Two per cent of the capital and surplus of commercial banks and trust com- 
panies ; 

ii. One per cent of the total outstanding loans made by a building and loan as- 
sociation ; but any business development corporation created pursuant to this chap- 
ter may in its charter by appropriate amendment thereto provide that the loan 
limit of a building and loan association member shall be only one-half of one per 
cent of the total outstanding loans made by it ; 

280 



§ 12-1263 1960 Cumulative Supplement § 12-1263 

iii. One per cent of the capital and unassigned surplus of stock insurance com- 
panies, except fire insurance companies ; 

iv. One per cent of the unassigned surplus of mutual insurance companies, except 
fire insurance companies ; 

v. One-tenth of one per cent of the assets of fire insurance companies ; and 

vi. Such limits as may he approved by the board of directors of the corpora- 
tion for other financial institutions. 

(4) Subject to paragraph (3) (a) of this section, each call made by the cor- 
poration shall be prorated among the members of the corporation in substantially 
the same proportion that the adjusted loan limit of each member bears to the ag- 
gregate of the adjusted loan limits of all members. The adjusted loan limit of a 
member shall be the amount of such member's loan limit, reduced by the balance 
of outstanding loans made by such member to the corporation and the investment 
in capital stock of the corporation held by such member at the time of such call. 

(5) All loans to the corporation by members shall be evidenced by bonds, de- 
bentures, notes or other evidences of indebtedness of the corporation which shall 
be freely transferable at all times, and which shall bear interest at a rate of not less 
than one-quarter of one per cent in excess of the rate of interest determined by the 
board of directors to be the prime rate prevailing at the date of issuance thereof on 
unsecured commercial loans. 

1960 (51) 1646, 1907. 

Effect of amendment. — The 1960 amend- 
ment, p. 1646, changed Insurance Commis- 
sioner to Chief Insurance Commissioner. 

§ 12-1263. Same; member withdrawn not obligated to make loans. 

A member shall not be obligated to make any loans to the corporation pursuant 
to calls made subsequent to the withdrawal of the member. 
1960 (51) 1907. 



281 



CODE OF LAWS 

OF 

SOUTH CAROLINA 
1952 



I960 Cumulative Supplement 



ANNOTATED 



Prepared under the supervision and direction of the 
Code Commissioner and the Committee on Statutory 
Laws of the General Assembly of South Carolina 

COMMITTEE ON STATUTORY LAWS 
Senators Representatives 

James B. Morrison, Cluxirman John D. Lee, Jr. 

John A. Martin Robert E. McNair 

P. Bradley Morrah, Jr. John C. Pracht, Jr. 

CODE COMMISSIONER 
Lewie Griffith Merritt 



IN EIGHT VOLUMES 

Volume 2 



TITLES 13 TO 20 



Place in Pocket of Volume 2 of Main Set 

FURMAN R. GRESSETTE 
St. Matthews, S. C. 

THE R. L. BRYAN COMPANY 

Columbia, S. C. 

1960 



Copyright 1960 

BY 

The State of South Carolina 



NOTICE 

This pocket supplement is not official. At the direction 
of the Committee on Statutory Laws the Acts as enacted 
have been edited in various particulars to conform them 
to the style and arrangement of the Code of 1952 and to 
make them more readily usable by the practitioner for 
ordinary work. For further details see the Foreword in 
the Pocket Supplement to Volume 1. 



Code of Laws of South Carolina 

1952 



I960 CUMULATIVE SUPPLEMENT 



Title 13. 
Cotton. 

Chap. 2. Weighers and Weighing, §§ 13-112 to 13-271.1. 

CHAPTER 2. 

Weighers and Weighing. 

Article 1. Article 8. 

General Provisions. Compensation and Charges in Certain 

Sec. Localities. 

13-112. Duties of weigher. Sec. 

13-112.1. Same; special provisions in Sum- 13-224. Where charge ten cents. 

ter County. 13-226. Sixteen cents in Chester County. 

Article 2. 13-227. Where twenty cents. 

Election or Appointment, and Terms, In 13-227.1. Where twenty-five cents. 

Certain Localities. 13-228. Where thirty cents. 
13-131.1. Appointment in Edgefield County. «^ . .. 

13-133. Election in Greenwood County and _ . . . „ ., . _ , , _ 

appointment at Manning and Proyisions Applicable in Tojmship. Con- 

Summerton. talnm S Clties . ^J™** Th ?usand and 
13-140. Biennial elections at certain places under Flft y Thousand. 

in Lancaster and Lexington 13-271. All cotton to be weighed, inspected, 
Counties. etc., at platform. 

13-271.1. Same; section inapplicable to 
Article 4. Sumter County. 

Removal and Vacancies in Certain 
Localities. 
13-165. Edgefield County. 

Article 1. 
General Provisions. 
§ 13-112. Duties of weigher. 

Editor's note. — See § 13-112.1 for amend- 
ment, 1954 p. 1555. 

§ 13-112.1. Same ; special provisions in Sumter County. 

No cotton weigher in Sumter County shall engage in the business of buying or 
selling cotton during his term of office and each cotton weigher shall devote such 
time to the duties of his office during the cotton weighing season as may be fixed 
by the governing body of the county. 

1954 (48) 1555. 



§ 13-131.1 Code of Laws of South Carolina § 13-165 

Article 2. 
Election or Appointment, and Terms, in Certain Localities. 

§ 13-131.1. Appointment in Edgefield County. 

In Edgefield County cotton weighers shall be appointed by a majority of the 
governing body of the county and the county supervisor. 

1953 (48) 78. 

§ 13-133. Election in Greenwood County and appointment at Manning and 
Summerton. 

Cotton weighers in Grecmvood County shall be elected and in the towns of 
Manning and Summerton in Clarendon County shall be appointed by the govern- 
ing body of the county to hold office for two years and until their successors are 
elected or appointed and qualified. 

1942 Code §§ 6402, 6405, 6419-1; 1932 Code §§ 6402, 6407; Civ. C. "22 §§ 3317, 3322; 
Civ. C. '12 §§ 2343, 2348; Civ. C. '02, §§ 1552, 1555; 1896 (22) 57, 58; 1897 (22) 433; 
1898 (22) 802; 1901 (23) 730; 1902 (23) 1175; 1904 (24) 410, 431; 1906 (25) 140, 142; 
1907 (25) 609; 1908 (25) 1043; 1909 (26) 183; 1910 (26) 715; 1911 (27) 36, 37; 1915 
(29) 67; 1917 (30) 219; 1927 (35) 240, 293; 1929 (36) 104; 1930 (36) 1128; 1934 (38) 
1276; 1944 (43) 2331; 1953 (48) 78. 

Effect of amendment. — The election and tion. For new provision with respect to 
term of cotton weighers in Edgefield the appointment of such cotton weighers, 
County was formerly covered by this sec- see § 13-131.1. 

§ 13-140. Biennial elections at certain places in Lancaster and Lexington 
Counties. 

On the first Tuesday of August 1952 and every two years thereafter at Pelion, 
Rishton and Sharp Hill precincts, on the second Tuesday of August 1952 and 
every two years thereafter at Lexington, Cromers, Irene, St. Matthews and Boyls- 
ton precincts, all in Lexington County, and in Lancaster and Heath Springs in 
Lancaster County the qualified electors entitled to vote in said respective precincts 
in Lexington County and the persons entitled to vote in such elections in Lancaster 
County shall elect cotton weighers, the electors of Pelion, Rishton and Sharp Hill 
precincts for the town of Pelion, the electors of the other above named precincts of 
Lexington County for Lexington and the other electors for their respective towns 
aforesaid. The terms of office of said cotton weighers shall be for two years and 
until their successors have been elected and qualified. A majority of the votes cast 
in such elections shall be necessary to a choice in Lexington County. 

The governing body of Lancaster County shall make such rules and regulations 
for the government of such elections held in said county as to them shall seem 
proper. Said governing body shall canvass the votes polled at such elections, declare 
such elections and issue a commission to the person declared to be elected. 

1942 Code §§ 6424, 6424-1, 6424-2, 6431, 6435, 6436; 1932 Code §§ 6424, 6431, 6435, 
6436; Civ. C. '22 §§ 3342, 3344, 3345; Civ. C. *12 § 2352; Civ. C. '02 § 1558; 1899 (23) 
194; 1918 (30) 761; 1920 (31) 841, 974; 1922 (32) 1009; 1930 (36) 1240; 1933 (38) 133, 
338, 339; 1938 (40) 1756, 1795, 1807; 1946 (44) 1347; 1953 (48) 78. 

Effect of amendment. — Formerly the 
section contained provisions with respect 
to cotton weighers in Edgefield County. 

Article 4. 
Removal and Vacancies in Certain Localities. 

§ 13-165. Edgefield County. 

In case of a vacancy in the office of cotton weigher at Johnston, Edgefield or 
Trenton in Edgefield County the office shall be filled by appointment within thirty 






§ 13-224 1960 Cumulative Supplement § 13-227 

days by a majority vote of the members of the governing body of the county and 
the county supervisor. 

1942 Code §§ 6424, 6424-1, 6424-2; 1932 Code § 6424; 1930 (36) 1240; 1933 (38) 133, 
338, 339; 1938 (40) 1756, 1795, 1807; 1946 (44) 1347; 1953 (48) 78. 

Effect of amendment. — The section for- governing body and supervisor should 
merly contained provisions with respect to deem such election advisable, 
the filling of vacancies by election if the 

Article 8. 

Compensation and Charges in Certain Localities. 

§ 13-224. Where charge ten cents. 

The cotton weighers at Darlington in Darlington County, in Florence County, 
at Chappells and Prosperity in Newberry County and at Seneca in Oconee County 
shall receive as compensation for their services ten cents per bale for each bale 
weighed by them. Such compensation shall be paid one-half by the buyer and one- 
half by the seller. 

1942 Code §§ 6417, 6421-1, 6426, 6428, 6441, 6444, 6449; 1932 Code §§ 6408, 6413-17, 
6426, 6428, 6441-6447, 6449; Civ. C. '22 §§ 3326-3330, 333S, 3340, 3349-3355, 3357; Civ. C. 
'12 §§ 2350, 2358; 1900 (23) 551; 1903 (23) 177; 1909 (26) 194; 1912 (27) 65, 639; 1914 
(28) 610; 1915 (29) 192, 383; 1920 (31) 843; 1921 (32) 172; 1922 (32) 1009; 1930 (36) 
1856; 1932 (37) 1158; 1936 (39) 1304, 1608; 1937 (40) 384, 403; 1944 (43) 2301; 1947 (45) 
256; >9 r il (47) 340; 1952 (47) 1879. 

Effect of amendment. — The amendment The second paragraph of the section was 
revised the first paragraph of the section not changed and therefore is not set out 
to read as above set out by eliminating above. As to Kershaw, see § 13-228 a* 
Kershaw in the counties of Lancaster and amended. 
Kershaw which was formerly included. 

§ 13-226. Sixteen cents in Chester County. 

The cotton weigher at Chester and any other cotton weighers in Chester County 
appointed under the provisions of § 13-138 shall receive such compensation as 
shall be fixed by the governing body of the county not in excess of sixteen cents 
per bale for each bale of cotton weighed, one-half to be paid by the seller and 
one-half by the buyer. 

1942 Code §§ 6418, 6427; 1932 Code §§ 6418, 6427; Civ. C. *22 §§ 3331, 3339; Civ. 
C. '12 § 2357; 1908 (25) 1198; 1917 (30) 218; 1918 (30) 775; 1920 (31) 105, 844, 860; 
1934 (38) 1212; 1944 (43) 2298; 1953 (48) 233. 

Effect of amendment. — The section for- Greenwood County, see § 13-227, as 
merly included Greenwood County. As to amended. 

§ 13-227. Where twenty cents. 

The cotton weighers in the counties of Edgefield (except in the town of Johns- 
ton), Greenwood, Marlboro, Orangeburg, Saluda, Sumter and York shall be paid 
for their services twenty cents for every bale of cotton weighed by them, respec- 
tively, one-half to be paid by the seller and one-half by the buyer. 

The cotton weighers at Wagener in Aiken County, St. Matthews and Cameron 
in Calhoun County and at Swansea in Lexington County shall receive as com- 
pensation for their respective services not exceeding twenty cents per bale for each 
bale of cotton weighed by them, respectively, one-half to be paid by the buyer and 
one-half by the seller. 

The governing body of McCormick County shall fix the compensation to be re- 
ceived by the cotton weighers at McCormick in McCormick County, not to ex- 
ceed twenty cents for each bale weighed by them, ten cents of which shall be paid 
by the seller and ten cents by the buyer. 

1942 Code §§ 6408, 6412, 6424, 6424-1, 6424-2, 6425, 6426, 6431, 6437, 6439, 6440, 6447, 
6454, 6455; 1932 Code §§ 6408, 6412, 6424, 6425, 6426, 6431, 6437-6439, 6440, 6448, 6454, 
6455; Civ. C. *22 §§ 3337, 3338, 3342, 3346-3348, 3356, 3362, 3363; Cr. C. '22 § 538; Civ. 



§ 13-227.1 Code of Laws of South Carolina § 13-271.1 

C. '12 §§ 2352, 2354, 2364; Civ. C. *02 § 1558; 1899 (22) 194; 1908 (25) 1210; 1909 
(26) 128; 1910 (26) 640; 1917 (30) 220; 1918 (30) 842; 1919 (31) 234, 261; 1920 (31) 
843, 974, 1119; 1921 (32) 260; 1922 (32) 777, 783, 1009; 1924 (33) 1052, 1178; 1925 
(34) 106; 1927 (35) 240; 1928 (35) 1160; 1929 (36) 66; 1930 (36) 1240; 1931 (37) 139; 
1933 (38) 44, 133, 338, 339; 1934 (38) 1324; 1936 (39) 1304, 1608; 1937 (40) 384; 1938 
(40) 1756, 1795, 1807; 1940 (41) 1872; 1944 (43) 1259, 2275, 2283, 2286, 2300; 1946 
(44) 1347; 1947 (45) 256; 1950 (46) 2322; 1952 (47) 1727; 1953 (48) 233. 

Effect of amendments. — The 1952 amend- Lancaster County from the coverage of 
ment revised the third paragraph by elimi- the section. The 1953 amendment added 
nating Heath Springs and Lancaster in Greenwood County in the first paragraph. 

§ 13-227.1. Where twenty-five cents. 

The cotton weigher in Aiken Township in Aiken County shall receive as com- 
pensation not more than twenty-five cents for each bale weighed by him. 

1952 (47) 1925. 

§ 13-228. Where thirty cents. 

The cotton weighers at Camden in Kershaw County and at Kershaw in Kershaw 
and Lancaster Counties shall receive thirty cents per bale for each bale of cotton 
weighed by them, fifteen cents to be paid by the buyer and fifteen cents by the seller. 

The governing body of Lancaster County shall fix the compensation to be re- 
ceived by the cotton weighers at Lancaster and Heath Springs in said county, such 
compensation not to exceed thirty cents for each bale weighed by them, fifteen cents 
of which shall be paid by the seller and fifteen cents by the buyer. 

1942 Code §§ 6422, 6429, 64S1; 1932 Code §§ 6422, 6451; Civ. C. '22 §§ 3335, 3359; Civ. 
C. '12 § 2355; 1910 (26) 710; 1920 (31) 925, 1562; 1938 (40) 1588; 1948 (45) 2056; 1951 
(47) 379; 1952 (47) 1727, 1879. 

Effect of amendments. — The amendments lating to Lancaster and Heath Springs in 

revised the second paragraph of the sec- Lancaster County. The first and third 

tion by adding Kershaw in Kershaw and paragraphs of the original section were 

Lancaster Counties and added a new unchanged and are therefore not set out 

fourth paragraph as set forth above re- above. 

Article 10. 

Provisions Applicable in Townships Containing Cities over Twenty Thousand 

and under Fifty Thousand. 

§ 13-271. All cotton to be weighed, inspected, etc., at platform. 

Editor's note. — See § 13-271.1 for amend- 
ment, 1954 p. 1557. 

§ 13-271.1. Same; section inapplicable to Sumter Connty. 
The provisions of § 13-271 shall not apply to Sumter County. 
1954 (48) 1557. 



Title 14. 

Counties. 

Chap. I. General Provisions, §§ 14-17 to 14-21. 

2. Boundaries of Existing Counties, §§ 14-60 to 14-86. 

7. County Officers Generally, §§ 14-314.1 to 14-329. 

8. County Planning and Development, §§ 14-355 to 14-400.551. 
8.1. Building Construction, §§ 14-400.2001 to 14-400.7300. 

9. Claims against Counties, §§ 14-402 to 14-403.1. 

10. Borrowing in Anticipation of Taxes in Certain Counties, §§ 14-451 to 
14-468. 

14. County Fairs and Fair Associations, §§ 14-671 to 14-683. 

15. Abbeville County, §§ 14-701 to 14-705. 



§ 14-15 1960 Cumulative Supplement § 14-15 

16. Aiken County, §§ 14-759 to 14-799. 

18. Anderson County, §§ 14-863 to 14-877. 

19. Bamberg County, §§ 14-901.1 to 14-903. 

20. Barnwell County, §§ 14-951 to 14-969.1. 

21. Beaufort County, §§ 14-1018 to 14-1046. 

22. Berkeley County, §§ 14-1071 to 14-1085. 

23. Calhoun County, §§ 14-1101 to 14-1121. 

24. Charleston County, §§ 14-1151 to 14-1297. 

25. Cherokee County, §§ 14-1310 to 14-1317.1. 

26. Chester County, §§ 14-1351.1 to 14-1397. 

27. Chesterfield County, §§ 14-1403 to 14-1448. 

29. Colleton County, §§ 14-1559 to 14-1561. 

30. Darlington County, §§ 14-1652 to 14-1713. 

31. Dillon County, § 14-1798. 

32. Dorchester County, § 14-1811. 

33. Edgefield County, § 14-1856. 

34. Fairfield County, §§ 14-1920 to 14-1941. 

35. Florence County, §§ 14-1958 to 14-1987. 

36. Georgetown County, § 14-2020. 

37. Greenville County, §§ 14-2054 to 14-2169. 

38. Greenwood County, §§ 14-2202 to 14-2241. 

40. Horry County, § 14-2303.1 

41. Jasper County, § 14-2402. 

42. Kershaw County, §§ 14-2450 to 14-2474. 

43. Lancaster County, §§ 14-2554 to 14-2591. 

44. Laurens County, §§/l 4-2605 to 14-2621. 

45. Lee County, §§ 14-2656 to 14-2666. 

46. Lexington County, §§ 14-2709 to 14-2761. 

47. Marion County, §§ 14-2801 to 14-2808.1. 

48. Marlboro County, § 14-2871. 

50. Newberry County, §§ 14-2964.1 to 14-2971. 

51. Oconee County, §§ 14-3000 to 14-3037. 

52. Orangeburg County, §§ 14-3071 to 14-3077. 

53. Pickens County, §§ 14-3157 to 14-3161. 

54. Richland County, §§ 14-3201.1 to 14-3233. 

56. Spartanburg County, §§ 14-3302 to 14-3375. 

57. Sumter County, §§ 14-3401 to 14-3431. 

58. Union County, §§ 14-3455 to 14-3466.1. 

59. Williamsburg County, §§ 14-3569 to 14-3591. 

60. York County, §§ 14-3601 to 14-3711. 

CHAPTER 1. 

General Provisions. 

Sec. Sec. 

14-17. Same; local exceptions in certain 14-19.1. Same; local exceptions for Jasper 
counties. County. 

14-21. How court fees paid. 

§ 14-15. Submission of estimate of county expenses to General Assembly. 

Appropriation of public funds is legisla- Courts may, by mandamus, require proper 

tive function, and is beyond power of a officials of county to include a proper claim 

grand jury, a county board of commis- against county in their next budget for 

sioners or, in Lancaster County, its board county expenses to be submitted to General 

of directors, and the judiciary. Gregory v. Assembly, and likewise require board of 

Rollins, 230 S. C. 269, 95 S. E. 2d 487 commissioners and county treasurer to pay 

(1956). a claim out of funds in hands of county 



§ 14-17 Code of Laws of South Carolina § 14-57 

treasurer belonging, as a matter of law, to v. Rollins, 230 S. C. 269, 95 S. E. 2d 487 
the claimant and not to the county. Gregory (1956). 

§ 14-17. Same; local exceptions in certain counties. 

Notwithstanding the provisions of § 14-16, the fiscal year of the counties of 
Abbeville, Aiken, Allendale, Anderson, Bamberg, Barnwell, Beaufort, Berkeley, 
Calhoun, Charleston, Chester, Chesterfield, Colleton, Darlington, Dillon, Dor- 
chester, Edgefield, Florence, Georgetown, Greenville, Horry, Jasper, Kershaw, 
Lancaster, Laurens, Lee, Marion, Marlboro, McCormick, Newberry, Oconee, Rich- 
land, Saluda, Spartanburg, Sumter, Union and York shall begin on July 1st of 
each year and end on June 30th of the next following calendar year. 

1942 Code § 3869; 1932 Code §§ 3869, 4777; Civ. C. '22 § 1110; Civ. C. '12 § 989; Civ. 
C. '02 § 804; Const. Art. 10 § 10; G. S. 621; R. S. 689; 1875 (15) 993; 1878 (16) 459; 
1890 (20) 710; 1927 (35) 252; 1933 (38) 449, 438; 1935 (39) 416; 1936 (39) 1339, 1376, 
1395, 1419, 1432, 1442, 1594; 1937 (40) 67, 71, 212, 391, 552; 1938 (40) 1538, 1539. 1561, 
1602; 1941 (42) 57; 1942 (42) 1475; 1943 (43) 69; 1944 (43) 1167, 1181, 1201; 1945 (44) 
35; 1946 (44) 1313; 1947 (45) 129, 296; 1950 (46) 1838; 1951 (47) 37; 1952 (47) 1702, 
1914; 1953 (48) 239, 387. 

Effect of amendments. — The 1952 amend- section and the 1953 amendments added 
ments added Abbeville and Richland Coun- Bamberg and Georgetown Counties, 
ties to the list of counties covered by the 

§ 14-19. Operation of county government in county without supply act. 

Stated in Bynum v. Barron, 227 S. C. Applied in McKown v. Daniel, 217 S. 

339, 88 S. E. 2d 67 (1955). C. 510, 61 S. E. 2d 163 (1950). 

§ 14-19.1. Same ; local exceptions for Jasper County. 

Provisions from A. & J. R. 1955 (49) 1096 make up this section. 

§ 14-20. Fees to be paid by county. 

This section requires county to pay Stat. 404, 448, requires county to pay main- 
maintenance of prisoner whose sentence tenance of prisoner whose sentence stayed 
stayed by appeal. — Where prisoner com- by appeal and while committed for safe- 
milted to state penitentiary pursuant to keeping awaiting trial, exclusive of first 90 
sentence, and appeal therefrom resulted in days of such safekeeping. Atty. Gen. Off 
granting new trial, this section, as amended Op. No. 555, Oct. 2, 1958. 
by § 38 of 1957 Appropriations Act, 50 

§ 14-21. How court fees paid. 

The fees allowed jurors, constables and witnesses shall be paid by the treasurers 
of the respective counties on the presentation to them of certificates signed by the 
clerk of court or may be received by such treasurers in the payment of all county 
taxes on presentation of such certificates duly signed by the clerk of court. 

1942 Code § 3860; 1932 Code § 3860; Civ. C. '22 § 1101; Civ. C. '12 § 980; Civ. C. '02 
§ 795; R. S. 677; 1893 (21) 489; 1954 (48) 1770. 

Effect of amendment. — The amendment supervisor's approval for payment of taxes 
eliminated requirement for presiding judge with same. 
to sign cei tificate and also requirement for 

CHAPTER 2. 

Boundaries of Existing Counties. 

Sec. Sec. 

14-60. Charleston County. 14-82. Lexington County. 

14-65. Colleton County. 14-86. Newberry County. 

§ 14-57. Beaufort County. 

Annexation of Yemassee Township by Beaufort County, by Jasper County, Is 

Jasper County constitutional. — The act valid and constitutional. Beaufort County 

M950 (46) 2332] providing for the annex- v. Jasper County, 220 S. C. 469, 68 S. E. 

ation of Yemassee Township, formerly in 2d 421 (1951). 



§ 14-60 1960 Cumulative Supplement § 14-302 

§ 14-60. Charleston County. 

Amended by A. & J. R. 1953 (48) 211. 

§ 14-65. Colleton County. 

Amended by A. & J. R. 1953 (48) 211. 

§ 14-77. Jasper County. 

Annexation of Yemassee Township con- by Jasper County, is valid and constitu- 
stitutional. — The act [1950 (46) 2332] pro- tional. Beaufort County v. Jasper County, 
viding for the annexation of Yemassee 220 S. C. 469, 68 S. E. 2d 421 (1951). 
Township, formerly in Beaufort County, 

§ 14-82. Lexington County. 

Amended by A. & J. R. 1953 (48) 416. 

§ 14-86. Newberry County. 

Amended by A. & J. R. 1953 (48) 416. 

CHAPTER 4. 
Creation of New Counties and Consolidation of Counties. 

§ 14-157. Appointment and duties of surveyors. 

In settling the question of area the sur- ors to make any actual survey of the area 
veyors exercise a quasi-judicial power. left in the county whose territory is to be 
Beaufort County v. Jasper County, 220 S. annexed. Beaufort County v. Jasper 
C. 469, 63 S. E. 2d 421 (1951). County, 220 S. C. 469, 68 S. E. 2d 421 

The law does not require the survey- (1951). 

§ 14-163. General Assembly to create new county. 

Act making annexation conditional on set aside the election as irregular or hold 

decision of court. — The General Assembly, that the General Assembly was wrong in 

in an act providing for the annexation of a the meaning which it ascribed to a word 

part of one county by another, may pro- used in the act. Such procedure is not 

vide that the act shall not go into effect in derogation of this section. Beaufort 

should the court, in any action brought County v. Jasper County, 220 S. C. 469, 

pursuant to permission granted by the act, 68 S. E. 2d 421 (1951). 

§ 14-165. Remedy of distress cumulative. 

Premises should not be broken into for and in collateral proceeding, attachment of 

levy of distress warrant in absence of such personal property as is within prem- 

tenant's permission, and landlord having ises as might be necessary to satisfy judg- 

no lien until levy by distress, proper remedy ment if rendered for plaintiff. Atty. Gen. 

of landlord is to bring action for recovery Off. Op. No. 667, Mar. 9, 1960. 
of rent due and owing and or ejectment 

CHAPTER 7. 
County Officers Generally. 

Sec. Sec. 

14-314.1. Disposition of unclaimed funds 14-326. Treasurer's report to superintendent 

held by clerk of court, master, of education in Greenville and 

probate judge and tax collector Union Counties, 

in Horry County; owners may 14-329. Publication of quarterly statements 

recover. in Greenville and Union Coun- 

14-324. "C o u n t y Treasurer's General ties. 
Monthly Cash Book" in Green- 
ville and Union Counties. 

§ 14-302. How vacancies in county offices filled. 

How vacancies created in offices of of the York County legislative delegation 
county directors. — The long-continued fail- to recommend persons for appointment as 
ure of a majority, including the Senator, members of the county board of directors 



§ 14-304 Code of Laws of South Carouna § 14-329 

pursuant to the terms of the York County under the general laws, this section and 

Government Act created vacancies in the § 1-122. Bradford v. Byrnes, 221 S. C. 

offices of county directors, and gave rise 255, 70 S. E. 2d 228 (1952). 
to the power of the Governor to appoint 

§ 14-304. How county officer removed; filling vacancy. 

Cross reference. — As to suspension by 
Governor of officers indicted for crimes, 
see §§ 50-9.1, 50-9.2. 

§ 14-314.1. Disposition of unclaimed funds held by clerk of court, master, 
probate judge and tax collector in Horry County; owners may 
recover. 

Provisions of A. & J. R. 1956 (49) 2563 make up this section. 

§ 14-315. Disbursing officers not to exceed or transfer appropriations ; suspen- 
sion by Governor. 
Applied in McKown v. Daniel, 217 S. 
C. 510, 61 S. E. 2d 163 (1950). 

§ 14-324. "County Treasurer's General Monthly Cash Book" in Greenville 
and Union Counties. 
Editor's note. — §§ 65-2421 et seq. re- 
quire Greenville County tax collector to 
collect current and delinquent taxes. 

§ 14-326. Treasurer's report to superintendent of education in Greenville and 
Union Counties. 

Editor's note. — §§ 65-2421 et seq. re- 
quire Greenville County tax collector to 
collect current and delinquent taxes. 

§ 14-329. Publication of quarterly statements in Greenville and Union 
Counties. 

Editor's note. — §§ 65-2421 et seq. re- 
quire Greenville County tax collector to 
collect current and delinquent taxes. 

CHAPTER 8. 

County Planning and Development. 

Article 1. Sec. 

In Counties Containing a City of Over of new buildings; public hearing 

70,000. on adoption or change required. 

Sec. 14-375. Powers of board on appeal. 

14-355. County planning board. Article 4.5. 

14-358.1. Duties and powers of municipal Bamberg County Planning and 

governing body when designation Development Co mm ission. 

of planning board accepted. 14-400.30. Created; powers; etc. 

14-366. Preparation and adoption of reg- Article 4.6. 

ulations governing subdivisions; Beaufort County Development Commission. 

approval of plat without action. 14-400.40. [Repealed.] 

14-366.1. New streets, roads and subdivi- 14-400.41. Created; duties and powers, etc. 

sions; preliminary plan required; Article 5.1. 

examination. Planning Board for Beaufort and Sheldon 

14-366.2. Open streets and roads and lay Townships and Ladies Island in St. Helena 

out subdivision on approval of Township in Beaufort County. 

plan. 14-400.50. [Repealed.] 

14-366.3. Sale of lots; recording of plat; 14-400.51. Created; powers; etc.; powers of 

dedication; maintenance. county board of directors as to 

14-367. Building or set-back line regula- construction, land use, etc.; 

tions for streets or highways board of adjustment; land sub- 
proposed for widening; location divisions. 

8 



1960 Cumulative Supplement 



Article 5.2. 
Aiken County Planning and Development 

Commission. 
Sec. 

14-400.61. Created; powers; etc. 
Article 5.4. 
Anderson County Development Board. 
14-400.81. [Repealed.] 

Article 5.4-1. 
Anderson County Planning and Develop- 
ment Board. 
14-400.82. Created; powers; etc. 

Article 5.5. 
Zoning Commission for Hanahan Public 

Service District in Berkeley County. 
14-400.100. Created; powers; etc. 

Article 5.8. 

Dorchester County Development Board. 

14-400.110. Appointment; term; vacancy; 

duties and powers. 

Article 5.9. 

Calhoun County Development Board. 

14-400.120. Created; powers; etc. 

Article 5.11. 
Darlington County Research, Planning and 

Development Commission. 
14-400.126. Created; powers; etc. 

Article 5.11-1. 
Board for Darlington Development District 

in Darlington County. 
14-400.130. Created; powers; etc. 
Article 5.12. 
Georgetown County Planning and 
Development Commission. 
14-400.132. Created; powers; etc. 
Article 5.13. 
Horry County Development Board. 
14-400.140. Created; powers; etc. 
Article 5.14. 
Fairfield County Planning and 
Development Board. 
14-400.145. Created; powers; etc. 

Article 5.20. 
Laurens County Planning and Develop- 
ment Commission. 
14-400.150. Created; powers; etc. 

Article 5.21. 
McCormick County Planning and Devel- 
opment Commission. 
14-400.160. Created; powers; etc. 
Article 5.22. 
Jasper County Development Board. 
14-400.168. Created; powers; etc. 
Article 5.23. 
Lexington County Planning and 
Development Board. 
14-400.175. Created; powers; etc. 

Article 5.24. 
Marion County Planning and Development 

Board. 
14-400.185. Created; powers; etc. 



Article 5.25. 
Marlboro County Industrial and Agricul- 
tural Development Board. 
Sec. 
14-400.195. Created; powers; etc. 

Article 5.29. 
Orangeburg County Planning and Devel- 
opment Commission. 
14-400.230. Created; powers; etc. 

Article 5.30. 
Pickens County Planning and Development 

Commission. 
14-400.250. Created; powers; etc. 
Article 5.35. 
Sumter County Development Board. 
14-400.300. Created; powers; etc. 
Article 5.40. 
Spartanburg Co